COVID–19 Vaccine Accountability Act would remove near-total legal immunity for Pfizer, Moderna, Johnson & Johnson
Should Americans be able to sue the companies which make the COVID-19 vaccine?
Context
During a public health emergency, the federal government wants to remove any barriers that could prevent or hinder people from getting the assistance they need. One major barrier used to be that organizations might worry about getting sued.
That largely changed in 2005. Enacted in the wake of Hurricane Katrina, the Public Readiness and Emergency Preparedness (PREP) Act of 2005 allows the Secretary of Health and Human Services to grant an organization or individual immunity from lawsuits regarding their “medical countermeasures” in an emergency.
The only exception is for a lawsuit alleging “willful misconduct.” In other words, if the person or organization deliberately did anything harmful or negligent — an extremely rare occurrence — the lawsuit is good to go. Otherwise, no luck.
In March 2020, former Trump Administration HHS Secretary Alex Azar granted this legal immunity to COVID-19 vaccine manufacturers through October 1, 2024.
Notably, this came about nine months before the vaccines were actually finalized, approved, and started going into people’s arms. Azar wanted to incentivize the vaccine’s development in the first place, by removing the potential disincentive of lawsuits right at the outset.
What the bill does
The COVID–19 Vaccine Accountability Act would remove this legal immunity for vaccine manufacturers such as Pfizer, Moderna, and Johnson & Johnson.
It was introduced in the House on December 14 as H.R. 6282, by Rep. Scott Perry (R-PA10).
What supporters say
Supporters argue that even if the legal immunity was helpful or even necessary for incentivizing the vaccine’s development in the first place, mission accomplished. The vaccine now exists, it’s existed for more than a year, and there’s no longer a need for this provision.
Rep. Perry himself has not gotten the COVID-19 vaccine, and tested positive for the virus in November.
Former Sen. Ted Kennedy (D-MA) opposed the PREP Act’s creation back in 2005, calling the December law a “Christmas gift to the drug industry and a bag of coal to everyday Americans.” (Kennedy died in 2009, so it’s unclear whether his position would have held firm during the COVID-19 pandemic.)
What opponents say
Opponents counter that this legal immunity was the main reason why the COVID-19 vaccine was developed in less than a year, when the previous record time was four years for the mumps vaccine in the 1960s. And extending that immunity through 2024 serves the same purpose, as the vaccines are tweaked and altered in response to new variants such as omicron.
“When the government said, ‘We want you to develop this four or five times faster than you normally do,’ most likely the manufacturers said to the government, ‘We want you, the government, to protect us from multimillion-dollar lawsuits,’” labor and employment attorney Rogge Dunn told CNBC.
“The outbreak remains a significant public health challenge that requires a sustained, coordinated proactive response by the government in order to contain and mitigate the spread of COVID-19,” Azar wrote in his original declaration of legal immunity.
Odds of passage
The bill has attracted one Republican cosponsor, Rep. Louie Gohmert (R-TX1). It awaits a potential vote in the House Energy and Commerce Committee.
Odds of passage are low in the Democratic-controlled chamber.
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This article was written by GovTrack Insider staff writer Jesse Rifkin.
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