Mainstream medical associations plan to ask a judge to block the next meeting of the Centers for Disease Control and Prevention’s vaccine advisers and to suspend the agency’s newly revised childhood vaccine schedule – to halt the further spread of “misinformation” and “non-scientific” decision-making, they said in a recent court filing.The feds balked at the administrative component of the proposals by the American Academy of Pediatrics, American Public Health Association, their Massachusetts affiliates, American College of Physicians, Infectious Diseases Society of America and Society for Maternal-Fetal Medicine, saying in the filing they violate legal procedure.
The joint status report submitted Friday by the associations and defendants – Health and Human Services Secretary Robert F. Kennedy Jr., CDC acting Director Jim O’Neill and their respective federal entities – followed U.S. District Judge Brian Murphy’s refusal to dismiss the plaintiffs’ Administrative Procedure Act and Federal Advisory Committee Act lawsuit Jan. 6.
Murphy raised eyebrows by granting AAP legal standing to sue on the basis that it had to “devote significant time and resources to counseling many” of its 67,000 members in response to the feds modifying COVID-19 vaccine recommendations and replacing CDC advisers. (He didn’t evaluate other plaintiffs because only one needs standing for litigation to proceed.)
Order ‘tacitly admits’ families often aren’t given informed consent
The judge denied he was flouting recent SCOTUS precedent that rejected standing for pro-life emergency room doctors challenging the Food and Drug Administration’s repeated relaxing of regulations for the abortion pill mifepristone, claiming the federal changes threatened AAP’s “core business activities.”
“AAP’s recommendations to physicians on vaccine use predate the creation of” the CDC’s Advisory Committee on Immunization Practices “by more than 25 years,” going far beyond the mere “educational and advocacy work” that SCOTUS rejected as grounds for standing in the mifepristone challenge, Murphy wrote.
By changing COVID vaccine recommendations for pregnant women and “healthy” children from universal to “shared clinical decision making” – a designation “typically reserved for vaccines where the risk/benefit analysis is less clear or complex” – the feds plausibly imposed costs on AAP members, the judge said.
These include “engaging in SCDM conversations without compensation, absorbing the full cost of purchasing vaccine doses that go unused due to the Directive’s suppression of vaccine uptake, and being able to see fewer patients per day due to the increased amount of time spent with patients discussing vaccines,” as the plaintiffs allege.
“For standing purposes, it was certainly predictable that the changes in recommendations would and will cause insurers to change their billing for the COVID vaccine,” Murphy wrote.
Kennedy also issued a “credible threat” that doctors could face “liability under the 1986 Vaccine Injury Act” by departing from the CDC schedule, the judge said. He cited the Supreme Court’s grant of legal standing to website designer Lorie Smith to prevent Colorado from punishing her if she were ever asked to design a same-sex wedding website and refused.
“It is telling that one of the alleged financial injuries to doctors discussed in the judge’s order is that pediatricians will have to spend more time discussing vaccines with families and thus will not be able to see as many patients each day,” general counsel Kim Mack Rosenberg of Children’s Health Defense, founded by Kennedy, told CHD’s in-house publication.
Murphy’s reasoning “tacitly admits that, in many pediatric practices,” families are not getting “informed consent” from doctors, she said.
The Epoch Times documented AAP’s financial connections to vaccine makers last summer when AAP released its own COVID vaccine recommendations at odds with the CDC schedule as it existed then, which also prompted Kennedy to note its corporate donors and call on AAP to fully disclose conflicts of interest.
AAP got another recent win against Kennedy when Judge Beryl Howell ordered HHS to restore $12 million in grants, nearly two-thirds of AAP’s budget. The agency likely had a “retaliatory motive” for terminating the funds, that AAP is a vocal critic of the administration’s actions on vaccines and so-called gender-affirming care, the President Obama nominee said.
Even Justice Kagan rebuked Judge Murphy for flouting SCOTUS
Nominated by President Biden but confirmed after the 2024 election, Murphy is known as one of the alleged “activist judges” frustrating the Trump administration’s immigration enforcement agenda. He blocked the acceleration of deportations, said the administration violated his order concerning a pair of deportees and ordered it to return another.
SCOTUS lifted Murphy’s nationwide injunction that required officials to give illegal aliens “meaningful” advance notice and a chance to object before their deportation to third-party countries, but Murphy said it didn’t apply to his ruling about the administration’s alleged violation of his order. The feds denounced his “unprecedented defiance” of SCOTUS.
South Texas College of Law professor Josh Blackman documented “the lower court revolt” among Boston’s federal judges last month, marveling that Murphy was likely to get reversed by SCOTUS three times in a single case after the judge again reportedly “wave[d] off” the second SCOTUS rebuke he received in July.
Even Justice Elena Kagan, who dissented on the first rebuke, concurred on the second.
“I do not see how a district court can compel compliance with an order that this Court has stayed,” she wrote.
