Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, co-authored an article in Health Affairs, titled “Vaccines in the Courts: A COVID-19-Induced Litigation Influx.”

Following is an excerpt:

Every year, in the decades before the COVID-19 pandemic, tens of bills were introduced in states legislatures aimed at undermining public confidence in and access to vaccines. Politicization of vaccines has not disappeared in the wake of COVID-19, but just the opposite as vaccine misinformation has been perpetuated by politicians and even, incredibly, by some state health officials. In addition to legislation, the COVID-19 pandemic was accompanied by a significant influx in vaccine-related litigation in the US courts. It has, to a degree, shifted the vaccine policy battleground from legislatures and into the courts (although legislation continues to be important, arguably, litigation is increasingly constraining what legislatures seeking to protect public health can do).

Major questions pertaining to vaccine science and public health authority are now being answered from the bench. After more than 100 years of settled precedent affirming the constitutionality of state vaccine mandates, dissenting justices of the US Supreme Court favor dismantling them. Questions about federal and employer powers to compel vaccination likewise saw their day in our highest court. Meanwhile, in the lower courts appellate judges have raised the specter of eroding liability protections for vaccine manufacturers, backlogs plague our nation’s vaccine injury court, and judges have made decisions based on misconstrued vaccine science.

This litigation has no apparent end in sight and will have major implications for vaccine confidence and access, and public health more broadly. The aftermath may be a once-in-a-generation seismic shift in law.

Jump to Page

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.