Vaccine Clause is Vital to Homeland Security Act

The current vaccine shortage, the worst ever, is putting millions of American children at risk of getting diseases that were eradicated by effective, universal vaccination. Thirty states have lowered vaccination requirements for children starting school, and forty states are rationing vaccine supplies. Among the worst shortages are vaccines to protect against MMR (mumps, measles, and rubella) and DTP (diphtheria, tetanus, and pertussis, or whooping cough).

There is no quick fix for the vaccine shortage, but eliminating injustices in our legal system will help. The controversy over thimerosal (a preservative used until recently in many childhood vaccines) is a glaring example of the damage done by baseless lawsuits. The thimerosal battle is still rumbling in Washington, D.C., despite a new study funded by the Institutes of Medicine and published in the current issue of the medical journal Lancet, which shows that thimerosal does not damage the health of vaccinated children. But this did not stop the trial lawyers who filed the lawsuits against companies manufacturing or using thimerosal, and it is not quieting the reckless charges still being made.

The controversy began three years ago when some parents of children with autism feared that thimerosal was behind the sudden surge in the disease. Thimerosal had been used for decades, but American children have been getting more and more vaccines recently, as many as twenty shots by age two. Nothing in the medical literature, and no current research, suggests a connection between thimerosal and autism. But in 1999, to be cautious (perhaps overly cautious), the National Institutes of Health recommended that the use of thimerosal be suspended until any possible side effects could be investigated.

The vaccine makers followed that suggestion, even though not all health officials agreed the precaution was necessary. In fact, Walter Orenstein, director of the National Immunization Program at the Centers for Disease Control and Prevention, called the move precipitous and warned that it would lead to vaccine shortages, which it has. The federal Food and Drug Administration rated thimerosal-preserved vaccines safe and advised physicians to use supplies on hand.

Nevertheless, trial lawyers representing some of the parents seized upon the precaution as evidence of proof that thimerosal is the cause of autism. A team of lawyers in Medford, Massachusetts, and Portland, Oregon, filed class action suits from coast to coast predicting that as many as thirty million American children might have been exposed to thimerosal.

Watching a parent try to care for an autistic child would break almost any juror’s heart. But before trial lawyers could get in front of a jury, they had to get around the vaccine court. Yes, vaccine court. Most Americans have heard of Supreme Court, traffic court, and family court. But there is also a vaccine court. It was set up by a 1986 law, the National Childhood Vaccine Injury Act, which was passed to ensure that anyone injured by a vaccine would be compensated, and, at the same time, the industry would be spared endless litigation and punitive damages. The act established a no-fault vaccine court with an expert to hear cases and gave families the right to collect medical costs, economic losses, and some money for pain and suffering. Families are also free to reject what the vaccine court offers and sue in regular court afterward. The only losers are trial lawyers, because in vaccine court there are no punitive damages and no multimillion dollar contingency fees.

No wonder lawyers bringing thimerosal claims wanted to get around vaccine court. To do so, they argued that the 1986 law applied only to suits against vaccine manufacturers, not against companies that made ingredients later used by those manufacturers. When Congress acted recently to close that loophole and keep the thimerosal suits in vaccine court, trial lawyers and anti-vaccine groups made it seem like foul play.

A two-paragraph provision tacked on to the end of the Homeland Security bill signed by President Bush clarified that the 1986 law applied to makers of vaccine ingredients as well as the finished product. The next day, headlines screamed that it was “A Loss for Parents of Autistic Kids.” Critics called it the work of “dirty hands.” They objected that the provision had “nothing to do with homeland security, nothing” and did not belong there.

To the contrary, the new provision had everything to do with national security. The nation faces a shortage of vaccines against germ warfare and a lack of research to develop better vaccines. One reason is that the risk of being sued and forced to pay punitive damages has led companies to stop making vaccines. In 1967, there were more than two dozen major vaccine makers. Now there are four. During the Senate hearings on the Homeland Security bill, Senator Tim Hutchinson (R-AR) warned that “we face a real and very serious crisis in the supply of vaccines against biological weapons.”

The provision in the Homeland Security bill was designed to help solve that problem, but those suing over thimerosal charged that “Republicans in Congress” had denied the parents of autistic children “one more thing—the chance to hold someone immediately accountable.” Parents were not robbed of that chance, because they never had it. No one can be held accountable because the causes of autism are not known. The outrage is that some 150 lawsuits were filed, and thousands more were in preparation, with no proof linking thimerosal to autism. Lawyers conceded that much, but, until the recent Lancet study, they insisted that there was no evidence disproving a link either. Disproving it? That could be said about autism and anything (you fill in the blank). That is the essence of the abuse—that anyone or any company can be sued and spend years fighting the claim, no matter how baseless it is.

This is not about protecting vaccine makers. It is about our children. “We simply cannot allow decades of tremendous progress in reducing vaccine-preventable diseases to become undone,” says Senator Jack Reed (D-RI). Amen.

This article appeared in the Investor’s Business Daily on December 6, 2002, and is reprinted with permission.