Ruth Bader Ginsburg was not a ‘medical freedom champion’

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Supreme Court justice Ruth Bader Ginsburg has died at age 87. Ginsburg is most noted for her lifelong fight for equality for women.

USA TODAY

The claim: Ruth Bader Ginsburg was a ‘medical freedom champion’

In the wake of Supreme Court Justice Ruth Bader Ginsburg’s death, people have taken to social media to honor her legacy. An Instagram tribute by Robert F. Kennedy Jr., a prominent anti-vaccination activist, claims that Ginsburg voted in support of medical freedom.

Kennedy’s caption on the Instagram post — a picture of Ginsburg under the text “R.I.P. R.B.G: Medical Freedom Champion” — pointed to a case in which the justice dissented as evidence in support of the claim.

“Ruth Bader Ginsburg’s death robs vaccine safety advocates of one of their SCOTUS champions,” the post reads. “The other is Sonia Sotomayor. In 2015, RBG joined Sotomayor in a withering dissent of Judge Scalia’s historic decision in Bruesewitz v. Wyeth. Scalia and his corporatist brethren interpreted the 1986 Vaccine Act (VICA) to shield Pharma with full immunity from liability for vaccine injuries.”

He added that the court’s decision “removed all incentives” for pharmaceutical corporations to make vaccines safe.

In response to USA TODAY’s request for comment, Kennedy sent USA TODAY the opinions of the court in the case, via his executive assistant, Lauren Gerrish.

Fact check: It’s true, Ginsburg and Scalia were close friends despite ideological differences

Bruesewitz v. Wyeth

After Hannah Bruesewitz was vaccinated for diphtheria, tetanus and pertussis in 1992, she was hospitalized for weeks with seizures, according to Oyez, a law project from Cornell’s Legal Information Institute. Her parents filed a petition seeking compensation for her injuries, which was denied; they later filed a lawsuit against the drug company, Wyeth.

The lawsuit, filed in Pennsylvania state court, was dismissed after a federal judge ruled the National Childhood Vaccine Injury Act protected Wyeth from lawsuits claiming vaccine injury. That was affirmed by /the Third Circuit Court of Appeals the U.S. Court of Appeals for the 3rd Circuit before it went to the Supreme Court.

But the question before the high court was not whether the vaccine hurt Bruesewitz; it was whether the federal law already in place could shield vaccine manufacturers from some liability lawsuits in state court seeking damages for vaccine injury.

“It’s a very practical question: Should we have state courts contemplate cases in addition to federal agencies?” said Dorit Reiss, a law professor at University of California-Hastings whose research focuses on vaccine law. “In part, it depends on how much you trust state courts; in part, it depends how much you trust the federal agency, but it has nothing to do with medical freedom.”

The majority affirmed the lower court’s decision that design defects were preempted, reasoning that Congress set up the Court of Federal Claims — as Justice Antonin Scalia called it in the majority opinion, “Vaccine Court” — to provide compensation to children injured by vaccines without also driving drug manufacturers away from the vaccine market.

Supreme Court Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg, participate in a women’s history event on Capitol Hill in Washington, D.C. Ginsburg died Sept. 18, 2020. (Photo: Allison Shelley, Getty Images)

Justice Sonia Sotomayor wrote a dissenting opinion, which argued the court should inquire whether “a feasible alternative design existed that would have eliminated the adverse side effects of the vaccine without compromising its cost and utility.” If the vaccine company could have, then it might still be liable. Ginsburg joined that dissent.

“It’s a really, really nit-picky textual argument over this language in the statute,” said Anna Kirkland, author of “Vaccine Court.”

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The case’s implications

To say Ginsburg was a supporter of — much less a “champion” of — medical freedom is misleading.

The term “medical freedom” is often a “code word” for the anti-vaccination movement, Kirkland said.

“Of course they’re for vaccine safety; nobody’s against vaccine safety,” she said. “The majority says, ‘Look, we have all these things in place for vaccine safety and this is what Congress needs to do. And it’s perfectly capable of doing that.’ And (Sotomayor and Ginsburg) say, ‘Well, no, actually we read the language the other way, and there’s a small loophole that we think would be fine and promote safety better.’

“There’s no indication whatsoever that Ginsburg would have gotten on this so-called ‘medical freedom’ bandwagon, which has just these really bizarre and unreasonable claims,” Kirkland added.

Reiss said that Ginsburg’s position in this case is in line with her views on preemption in other cases, like Riegel v. Medtronic, Inc.

Both Reiss and Kirkland objected to Kennedy’s implication that the majority’s decision “removed all incentives” to make vaccines safe.

“I think for companies who invest hundreds of billions of dollars in testing a vaccine, the fear of having it taken off the market is a big incentive to keep it safe,” Reiss said.

Kirkland added that there’s still a large regulatory scheme intended to ensure vaccines are safe.

The companies “have plenty of incentive through the regulatory scheme and through fear of scandal and reprisals,” she said. “So frequently the anti-vaccine activists act as if the whole regulatory field doesn’t do anything.”

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Undercurrents of the decision

Still, while “full immunity” is not a legal term, Kirkland said that’s an accurate characterization of the protection the pharmaceutical industry now has from vaccine injury liability.

“It is a quite robust preemption of lawsuits,” she said. “The whole game that the anti-vaxxers actually cared about was taken off the table fully.”

The game Kirkland is referring to is the common anti-vaccine argument that vaccines can cause autism. The Institute of Medicine, an impartial group that advises Congress on science issues, determined that evidence did not show a link between vaccines and autism.

“(Anti-vaccination activists) wanted to be able to get an avenue back into court and to get a jury to weigh in on that instead of experts,” Kirkland said.

She said those experts urged the court to come down on the majority side, looking at the Omnibus Autism Proceeding.

“They’re all saying, you know, ‘Don’t open this bottle,’” Kirkland said.

The justices resolved the case based on the text of the National Childhood Vaccine Injury Act.

“This is just a very arcane case; it’s not ideological, so much,” Kirkland said. “It was, you know, about all these under-current politics that were happening, and I don’t have any indication that the justices did necessarily know. They certainly didn’t let on, and they keep it all in this very textual, text-based argument.”

To say it was a case about medical freedom, or even vaccine safety, is false, both experts concluded.

“This isn’t medical choice at all, and it can’t be considered an anti-vaccine decision,” Reiss said. “You can say Justice Ginsburg was about making it easy for people to be compensated for injuries related to a medical product, not just vaccines.”

Fact check: No guarantee Obama would’ve replaced Ginsburg with a progressive justice

Our rating: Missing context

The case Robert F. Kennedy Jr. cites as a reason Ruth Bader Ginsburg was a “medical freedom activist” was not about medical freedom. The case did not remove “all incentives” to keep vaccines safe, however, the decision did protect pharmaceutical companies from vaccine injury liability. Ginsburg’s dissent was related in a broader sense to medical products, not just vaccines. We rate this claim MISSING CONTEXT, because it could be misleading.

Our fact-check sources:

  • Interview with Dorit Riess, law professor at University of California-Hastings whose research focuses on vaccine law
  • Interview with Anna Kirkland, author of Vaccine Court and professor at the University of Michigan
  • Supreme Court of the United States, Feb. 12, 2011, Bruesewitz et al. v. Wyeth opinions
  • Oyez, Bruesewitz v. Wyeth Inc.
  • Oyez, Riegel v. Medtronic, Inc.
  • The National Academies Press, The Institute of Medicine: Advising the Nation, Improving Health
  • The National Academies Press, Aug. 25, 2011, Adverse Effects of Vaccines: Evidence and Causality
  • United States Court of Federal Claims, Omnibus Autism Proceeding
  • USA TODAY, Sept. 18, 2020, Ruth Bader Ginsburg: Second woman on Supreme Court had been nation’s leading litigator for women’s rights

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