PREP Act Liability Protections worked, COVID-19 vaccines are safe and life-saving

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Attorney David BetrasAs Brad Pitt and J-Lo know only too well, being a celebrity, a status I achieved thanks in no small part to this column and the quite fetching full-color headshot that runs with it, can sometimes be a pain in the gluteus maximus. That pain has become excruciating in recent weeks as a growing number of incredibly intense people have accosted me in public because I believe everyone should receive the COVID-19 vaccine and I support vaccination mandates.

Look, I am more than willing to engage in a fact-based debate about the pandemic and the measures being taken to end it. But I run out of patience when someone shoves their smartphone in my face while I am sitting in a restaurant eating and screams DAVID, DAVID, look at this Facebook post—thanks for that Mark Zuckerberg—and then proceeds to tell me at the top of their lungs that the vaccines contain computer chips, are made from dead babies, will alter my DNA, and render me infertile.

Well, okay, none of those things are true, a detail that has exactly zero impact on the wild-eyed disbelievers who hover around me like buzzards circling roadkill until I give up and run for the door.

A couple of days ago, however, one of the vaccine resisters who has dedicated his life to disrupting my dinner made a relatively cogent point, albeit in a belligerent manner. “Hey, Mr. Big Shot Trial Lawyer, if the vaccines are so safe, how come the government passed a law that says vaccine makers and those who dispense it can’t be sued when their poison kills and maims people? Why did they leave victims out in the cold? They did it because they know the death toll is going to be in the millions, that’s why.”

COVID Vaccination Rates, U.S. and OhioSo, my tormenter is right about one thing: the federal government has extended nearly total liability immunity to manufacturers, distributors, prescribers, and dispensers of products developed to treat, diagnose, or prevent the onset of COVID-19.

But it is important to remember that the Public Readiness and Emergency Preparedness Act (PREP) which provides the immunity was not enacted specifically to protect the makers of COVID-19 vaccines. It was enacted by Congress and signed into law by George W. Bush in 2005 in the wake of a serious bird flu outbreak. The rationale for the law was simple: the liability shield would give drug makers the protection they needed to respond quickly and effectively to a public health crisis.

When Coronavirus hit, the law worked exactly as planned. On February 4, 2020, the Trump Administration declared COVID-19 to be a public health emergency and invoked PREP. Within months the first vaccines were ready for use. Today, 191 million Americans have been vaccinated, and due in large part to vaccine mandates imposed by employers, the spread of the Delta variant is easing rapidly.

While my anti-vax buddy was right about the existence of the liability shield, he was wrong when he said those hurt or killed by the vaccine would be left out in the cold. Anyone who believes they have suffered serious side effects from a COVID-19 vaccine is eligible to file for benefits from the Countermeasures Injury Compensation Program (CIPC), a special fund established to provide payments to anyone who was injured by any drug or treatment related to a PREP emergency declaration. To date, while 416 million doses of the vaccine have been administered only 296 COVID-19 related claims have been filed.

Now that is a statistic that should be all over Facebook.

Supreme Court will decide unprecedented number of blockbuster cases during 2021-2022 term

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Attorney David BetrasLike kids counting the days until Christmas, attorneys, legal scholars, and jurisprudence junkies, including me, eagerly anticipate the first Monday in October, the day the Supreme Court of the United States (SCOTUS) begins its new term each year. We can barely control ourselves as we wait for the justices to decide which of the 7,000 cases submitted to them annually become one of the 150 or so they hear.

Under normal circumstances, the justices go about their work in relative obscurity because the cases on the Court’s docket, which is dominated by battles between states over water rights, business disputes, and arguments about arcane legal principles, do not impact the lives of most Americans or generate much media coverage aside from long, jargon-packed pieces posted on SCOTUSblog. Believe me, if you have insomnia, spend a few minutes on the site and you will be sleeping in no time.

This year, however, is far from normal. Although the 2021-2022 term is less than two weeks old, the Court is under intense scrutiny because the justices have agreed to hear a number of cases that may ignite legal and societal firestorms while further undermining the public’s waning support for the Court which was once widely regarded, in the words of Alexander Hamilton, as the “least dangerous” branch of government.

Entrance to US Supreme CourtChief among the potential blockbusters is Dobbs v. Jackson Women’s Health Organization, which centers on a Mississippi law which, with few exceptions, prohibits abortions after 15 weeks of gestation. Dobbs gives the Court the opportunity to overturn  Roe v. Wade which established a woman’s right to choose and Planned Parenthood v. Casey, which protects that right until viability. It is, quite simply, the most important reproductive rights case to come before the Court in 30 years.

New York State Rifle & Pistol Association Inc. v. Bruen is the first significant firearms case to come before the Court since the 2008 ruling in District of Columbia v. Heller that extended Second Amendment protections to individuals. Bruen arrives at the Court on appeal from the 2nd Circuit which upheld New York state’s strict gun licensure law which requires residents to obtain a permit to possess a firearm and totally bans open carry. A decision in favor of the Association could gut gun laws across the nation.

Like Bruen, Carson v. Makin which challenges Maine’s prohibition against using state funds to pay tuition for schools that offer religious instruction has nationwide implications. The justices will decide if Maine’s law violates the free exercise, establishment, and equal protection clauses of the Constitution. If they so hold, voucher programs across the U.S., including Ohio’s will be impacted and taxpayer dollars will begin flowing to schools that promote religion.

Other important cases include Students for Fair Admissions v. President and Fellows of Harvard College which poses a lethal threat to race-based college admission programs,  CVS Pharmacy Inc. v. Doe which involves alleged discrimination against persons with HIV, as well as cases focused on national security, campaign finance laws, and Texas’ new draconian abortion restrictions.

The last time the Court ruled on this many consequential cases in one term was, well, never. Throughout history, cases of similar magnitude to the ones on SCOTUS’ 2021-2022 docket were heard and decided every five or ten years. As a result, one thing is certain: the justices will not labor in obscurity over the next 12 months.