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.