Ross Marchand is the executive director of the Taxpayers Protection Alliance.
Most voters support vaccine access, no matter where they fall on the political spectrum. They want to maintain access to safe vaccines approved by the Food and Drug Administration, and they trust their doctors’ recommendations for when and how to receive them. Unfortunately, some politicians are determined to weaken or do away with something that most Americans have never heard of but has worked for decades: the Vaccine Injury Compensation Program (VICP).
Enacted in 1986, this federal program allows injured parties to file vaccine-related claims against the Department of Health and Human Services rather than suing manufacturers right away. The VICP has allowed lifesaving vaccines to stay on the market without being sued out of existence. Yet policymakers have baselessly characterized the program as broken. Health Secretary Robert F. Kennedy Jr. called it a “morass of inefficiency, favoritism, and outright corruption.”
Congress created the VICP to compensate people harmed by vaccines — without the delay and expense of civil court. That expense was crippling in the days before the VICP. An analysis examining litigation targeting the diphtheria, tetanus and pertussis vaccine (DTP) found that “from 1978 to 1984, the average amount claimed per suit has risen from $10 million to $46.5 million.” Those amounts padded the pockets of attorneys and were inevitably passed down to patients in the form of higher health care costs. In civil court, trial lawyers routinely take a third or more of an award off the top before their clients see a dollar.
In contrast, the VICP provides for reasonable attorney costs, separate from the award that goes to successful claimants. For example, in the recent VICP case Mitchell v. Secretary of Health and Human Services, the petitioner was awarded more than $310,000 for a vaccine-induced blood disorder characterized by unusually low platelet levels. Attorneys’ fees and costs were paid separately by the vaccine program. These expenses were not contingent on the claimant’s compensation, diminishing the incentive to pursue extravagant awards.
Kennedy is trying to dismantle the VICP by launching costly, duplicative studies looking for evidence linking vaccines to health problems. He is not the only threat to the program. In Congress, the End the Vaccine Carveout Act, now with a Senate companion, would remove limits on claims through the VICP and send vaccine claims back to civil court. At HHS, Kennedy’s allies have petitioned to add more than 300 conditions to the vaccine injury list, autism among them. If autism joins that list, the program would presume a vaccine caused the condition, and a flood of claims could bankrupt the fund.
Peter Grossi, a Harvard Law School lecturer, estimated that the most serious autism cases alone would result in a flood of claims with aggregate awards approaching $100 billion. Even after that initial wave of claims, awards could total about $30 billion annually. These sums would overwhelm the roughly $4.7 billion balance in the VICP trust fund.
An excise tax — paid by vaccine manufacturers, producers or importers — funds the program. That tax brings in less than 1 percent of the $30 billion in new awards that would be doled out each year. Congress would have to raise that tax steeply or bail out the fund with taxpayer dollars. And if the program collapses, victims of vaccine injuries would have to navigate a crowded and costly civil court system to get justice. Manufacturers would once again face open-ended lawsuits, and some could stop making vaccines altogether.
Eliminating the VICP would redirect vaccine injury claims back into state court systems, resulting in nearly 1,000 new lawsuits annually, according to estimates by the nonprofit Taxpayers Protection Alliance. Manufacturers would be exposed to increased tort liability and soaring defense litigation costs. If passed along to patients, those costs could add nearly $6 to the price of each vaccine dose. That would mean higher premiums and co-pays as well as reduced access to vaccines nationwide. Higher per-dose procurement costs would directly impact federal and state budgets through public health purchasing programs such as Vaccines for Children, driving up government spending.
Voters have already said where they stand. As polling demonstrates, they want access to vaccines and politics out of their medical decisions. And critically, they want the VICP to remain in place. When informed about what the program does, 66 percent call it a good idea, including 72 percent of Republicans and 61 percent of independents.
With the midterms two weeks away, the administration is picking a fight that most voters oppose. Principled conservatives in Congress and the White House should protect this vaccine program, stand up to the trial bar, and stand with the majority of Americans who want continued access to vaccines.
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