Health and Human Services Secretary Robert F. Kennedy Jr. is determined to expand his unprecedented assault on healthcare and patient choice. He’s already played dangerous games with vaccine access and made it more difficult for Americans to access lifesaving drugs.
His latest target is a program that has long protected patients by spurring the development of vaccines that banish once-deadly ailments. The Trump administration should put an end to this travesty and embrace choice and innovation.
It’s no secret that Kennedy has nothing but contempt for the Vaccine Injury Compensation Program, which protects vaccines from eradication by litigation. He’s called VICP “broken” and has accused it without evidence of “fail[ing] its mission.” Kennedy recently fired four of the nine members of the Advisory Commission on Childhood Vaccinations and is poised to replace them with vaccine skeptics with deep connections to the trial bar. This new ACCV is all but certain to weaken VICP and overwhelm it, with the ultimate goal of destroying it.
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To gauge the impact of these likely changes, it’s critical to understand how VICP operates. The program was established by legislation in 1986 to mitigate the effects of liability on vaccine development. This was in response to litigation-driven shortages of lifesaving vaccines. An analysis by North Dakota State University describes the dire pre-VICP state of affairs: “low profit margins and lawsuits related to vaccine safety led several manufacturers to withdraw their [diphtheria, pertussis, and tetanus] vaccines from the market. The price of DPT vaccine skyrocketed … By the end of 1985, only one company was still manufacturing pertussis vaccine in the U.S.”
The program has proven to be the most effective way to preserve vaccine availability and affordability for all Americans, while ensuring victims of vaccine injuries are fairly compensated. In fact, VICP has awarded $5.2 billion since the program began accepting claims in 1988, with nearly all of that money going directly to claimants.
For years, the VICP has been overwhelmed by an uptick in claims, to the extent that many are denied, dismissed, or see significant delays. The problem is clearly not that VICP does not handle enough types of claims, as Kennedy seems to believe. Rather, the program was never designed to handle massive and unreasonable expansions, particularly those that broaden the Vaccine Injury Table to cover unsubstantiated conditions. Even modest increases in claims will break an already fragile system.
If Kennedy and his hand-picked acolytes on ACCV get their way and expand the Vaccine Injury Table further, VICP will go bankrupt and enable a windfall for trial lawyers, while victims are left with mere pennies.
Kennedy and his trial-lawyer friends envision a system in which VICP is overwhelmed by cases, pushing more claims into civil court. One particular proposal envisions swamping VICP by adding costly and unfounded autism-related claims to the system.
The question over whether to consider autism as a “table injury” — a health condition found to be caused by vaccines and eligible for a VICP payout — is not a new one. In the early 2000s, VICP addressed more than 5,000 autism-related petitions by consolidating them into a handful of test cases for consideration. Years of study, testimony, and submitted evidence yielded a clear result: vaccines do not cause autism. As U.S. Court of Federal Claims Special Master Daniel T. Horner noted in more recent proceedings, petitioners in the test cases, as well as follow-on individual cases, argued separate theories of causation but invariably came up short in the evidence department. That’s not much of a surprise given that the link between autism and vaccines has been extensively studied and debunked by scientists.
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Reversing this carefully thought-out precedent would be exceptionally costly for taxpayers and consumers. As University of Pennsylvania legal scholar Peter Grossi notes, “the economic burden on the VICP of just one year of the most serious autism cases would likely total more than $30 billion—more than 100 times the program’s annual revenues. And because such claims could be submitted by those diagnosed within the last three years, the program could be faced with an immediate docket consisting of claims totaling nearly $100 billion.” This would almost certainly bankrupt the system, leading to the pre-VICP status quo of disruptive litigation that bankrupted vaccine manufacturers and disrupted supplies.
Kennedy’s latest ideological crusade would be great for trial lawyers, but terrible for millions of patients who depend on lifesaving vaccines. Americans deserve a legal system that works for them and fosters patient choice.
Ross Marchand is the executive director of the Taxpayers Protection Alliance.