SENATE BILL TAKES AWAY POWER FROM STATES AND SHIELDS DRUG COMPANIES FROM ACCOUNTABILITY FOR VACCINE INJURIES
by Barbara Loe Fisher
co-founder & president,
National Vaccine Information Center

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They are at it again. Those determined federalists and lobbyists for big Pharma, who view informed consent advocates and vaccine victims as an impediment to exercising more control over and making more money off of America's forced vaccination system. This time, they are using the public's memory of September 11, 2001 to push a Senate bill (S.3) deceptively entitled "Protecting America in the War on Terror Act of 2005."

S.3 was one of the first bills introduced after the 109th Congress convened in January 2005. Main sponsors are Senators Bill Frist (R-TN) and Judd Gregg (R-NH), who attempted in the last Congress to pass legislation protecting drug companies from vaccine injury lawsuits in civil court and limiting the compensation vaccine victims could get under the National Childhood Vaccine Injury Act of 1986.

S. 3, like so many federal bills which have played off the fear generated by September 11, 2001, uses the public's concern about potential terrorism to shield drug companies from liability for vaccines that will be used by Americans whenever the Secretary of DHHS declares that a "disease or disorder presents a public health emergency." The bill's language, which refers to the Homeland Security Act of 2002 and the Public Health Service Act (42 U.S.C.), is so broad and inclusive, that an outbreak of any infectious disease which could cause an "epidemic" or "pandemic" could qualify as a public health "emergency." At the same time, any vaccine manufactured by a drug company could qualify for complete liability protection depending upon if it used in the public health "emergency" declared by the Health Secretary.

In light of the increasingly hysterical rhetoric coming out of the CDC about infectious diseases and the need for all children to get more than three dozen doses of a dozen vaccines, a few cases of measles or a particularly nasty flu season could be enough reason for the Health Secretary to label the event a public health "emergency." The Secretary of DHHS has already granted a request from the Secretary of the Department of Defense (DOD) in January 2005 to declare an "emergency" under provisions of the 2004 Project Bioshield Act (P.L. 108-276). This action was a blatant attempt to go around an injunction issued by federal Judge Emmet Sullivan in October 2004 after he ruled the military's involuntary anthrax vaccination program was illegal.

S. 3 is being promoted by sponsors as a military "compensation" bill because it contains provisions giving more generous death benefits to families whose loved ones have given their lives during military service. That worthy goal is hiding from the public the fact that the bill takes away individual freedoms and further limits the right of states to make their own laws when it comes to protecting the public health and safety.

The Tenth Amendment to the Constitution specifies that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Protecting the public health was not delegated to the federal government in the Constitution. Public health laws, including laws governing the use of vaccines, have always been under the control of citizens residing in each state.

Therefore, states have enacted different laws governing the use of vaccines. In the 1980's, the Departments of Health in Massachusetts and Michigan manufactured vaccines used in those states and historically legal requirements for and exemptions to vaccination have differed from state to state.

S. 3 would take away the right of Americans to make their voices heard through their elected state representatives on the subject of vaccines and vaccine safety. It would eliminate a state's right to more strictly regulate vaccines or more fully inform citizens about vaccine risks than does the federal government. S. 3 is a blatant attempt to take away power from the people to have control over public health laws in their own communities and gives it to the federal government. It prepares the way for mass vaccination mandates to be created and enforced at the federal, not the state level, in the future.

Dissatisfied with the way the Food and Drug Administration and Centers for Disease Control have been regulating vaccines and informing citizens about vaccine risks, legislatures in both Iowa and California recently passed laws more fully informing residents about vaccine risks as well as limiting the amount of mercury contained in vaccines used in those states.

If S.3 passes, the mercury ban laws in Iowa and California would be repealed and similar laws pending in Illinois, Maryland, Minnesota, Missouri, Nebraska, New York, Ohio, Pennsylvania and Washington would have to be withdrawn. Families across America would lose the right to empower themselves by empowering their elected local representatives to pass state laws protecting them from unsafe vaccines and inadequate vaccine risk information. Over time, American citizens could well lose the right to informed consent to using vaccines which carry a risk of injury or death because the federal government, not state governments, would be in total control of vaccine composition, what citizens are told about vaccine risks, and laws requiring vaccine use.

In another assault on state's rights, S.3 takes away a citizen's right to seek justice in state courts for vaccine injuries and deaths. All vaccine injury lawsuits would only be tried in federal courts and financial awards would be severely limited. There would be no punitive damages under any circumstances, even if it could be proven the vaccine manufacturer engaged in fraud and criminal negligence, as was proven in the case of tobacco companies.

At the same time, S. 3 allows employees of the Department of Health and Human Services (DHHS) and Department of Justice (DOJ) to write the terms of their own defense in the federal Vaccine Injury Compensation Program (VICP) created by the 1986 Childhood Vaccine Injury Act. Currently, any individual injured by a federally recommended and state mandated vaccine must first sue the Secretary of DHHS under the VICP and can only go to a civil lawsuit if turned down for or offered too little compensation. As the defendant in VICP, the Secretary of DHHS has used DOJ lawyers to fight almost every vaccine injury compensation claim and two out of three claimants are turned away empty handed. S. 3 would make it even more difficult for the vaccine injured to receive compensation.

In yet another move to strengthen the ability of CDC officials to monitor the vaccination status of all citizens for purposes of enforcing use of federally recommended vaccines, S.3 creates and funds a mandatory national electronic tracking system to monitor everyone's health records. The system will track both notifiable and non-notifiable diseases and "new trends" and "patterns in public health." That means that if an individual gets treated for an ear infection or visits a psychologist for depression, it will be reported to the CDC.

There are financial penalties included for states and individual health care providers who do not report in a "timely manner" to the national tracking system. Of course, there are no provisions for mandatory reporting of serious health problems following vaccine and prescription drug use or punishments for not reporting serious side effects.

S. 3 is the latest action in a 15-year collaboration between industry and the federal government to electronically track every citizen's vaccination choices; force vaccination without informed consent; and limit the ability of vaccine victims to be compensated for their injuries. Beginning in 1991, the Robert Wood Johnson Foundation awarded nine million dollars in grants to 20 cities to set up electronic tracking registries to insure use of all government recommended vaccines. That same year the CDC directed that all newborn infants receive hepatitis B vaccine at birth.

By 1993, Congress had passed the Comprehensive Childhood Immunization Act creating state electronic vaccine registries. By 1995, the Secretary of Health had appropriated the social security number for vaccine status tracking purposes. By 1996, passage of the Health Insurance Portability and Accountability Act (HIPPA) further reinforced the government-operated electronic tracking mechanism using the social security number as the ID and vaccination at birth with hepatitis B vaccine as the first identifying event.

By the late 1990s, the Secretary of DHHS had rewritten the rules for compensating vaccine injured children under the "no-fault" VICP. Almost no vaccine injured child could qualify for an award without going through what amounted to a full-blown trial in the Federal Court of Claims.

The 1990s also saw many new vaccines added to the federally recommended list and, at the encouragement of federal health officials, more vaccine mandates and more strict enforcement of state vaccine laws. Religious, philosophical and conscientious belief exemptions to vaccination were increasingly being denied or taken away from children whose parents had filed them at school entry. Poor children were being denied government entitlement programs, such as free medical care, if proof they had received all government recommended vaccines was not demonstrated. Also, more children were being denied medical insurance by HMO's, which are subjected to a quality control rating system that counts high vaccination rates by HMO participants as a measure of quality.

After September 11, 2001, the Homeland Security (2002) and the Project Bioshield Act (2004), along with Model State Emergency Health Powers Acts (MSEHPA) enacted in many states, gave public health officials sweeping new powers to declare a "public health emergency" in the future and use the militia, if necessary, to quarantine and forcibly vaccinate citizens. At the same time, those drug companies which make vaccines, federal government officials and agents of the state who force vaccination under these new laws were given exemptions from liability for any vaccine deaths or injuries which occur.

S.3, together with a bill recently introduced into the House of Representatives (H.R. 650) to effectively eliminate vaccine injury lawsuits in civil court, as well as the recent vote by the House to approve a federally monitored electronic ID card linked to the driver's license, all point to a massive assault by the federal government on state's rights and individual liberties. Vaccines have been used to forward the agenda of those who would use the idea of disease control or combating terrorism as a means to give unrestricted power to federal officials to track citizens, take away freedom and the right to seek justice in the civil court system for injuries caused by an unsafe product.

The National Vaccine Information Center (NVIC), which is a national, non-profit organization founded in 1982 by parents of vaccine injured children has served as a watchdog on federal and state vaccine development, regulation, legislation and policymaking for more than two decades. NVIC has worked with parents in states to both protect and insert informed consent protections in mandatory vaccination laws. NVIC helped families in California educate their legislators about the need for a law limiting the mercury content of vaccines and giving citizens more accurate vaccine risk information, a law which was passed by the state legislature and signed by California Governor Arnold Schwarzenegger in 2004.

Those who would like to make their views known about S.3, may contact their Senator, Congressperson and Senators Bill Frist and Gregg Judd by letter, fax, or email.

For more information about pending vaccine-related legislation at the state and national levels, go to NVIC's website at www.nvic.org. The site also has in-depth information on vaccines, diseases, mandatory vaccination laws, vaccine tracking systems, informed consent rights and media reports about vaccines. NVIC offers a free e-news service and can assist parents with reporting vaccine reactions to the federal government as well register a child's vaccine reaction in NVIC's Vaccine Reaction Registry, which NVIC has operated since 1982.