Two years ago, I wrote what I thought was a straight-up and neutral post saying that the Supreme Court never held that vaccines are “unavoidably unsafe.” Here is that post and my in the weeds explanation of what the Supreme Court actually said and did in that case.  https://rickjaffeesq.com/2019/02/16/to-my-vaccine-concerned-friends-stop-saying-that-the-supreme-court-decided-that-vaccines-are-unavoidably-unsafe-it-didnt/ 

The bottom line is that there is no majority or plurality opinion or decision which held that “vaccines are unavoidably unsafe.” This is just my analysis of a Supreme Court case. It is not a statement about the safety or lack thereof of vaccines.

I think all of you should move on from the whole “vaccines are unavoidably unsafe” mantra because repeating it shows your lack of understanding about the law, and that you don’t know what you are talking about, literally. Here is why:

There are words and phrases which have both a common and technical meaning (the latter are might be referred to as “terms of art.”  “Due Process” and “Discrimination” are two such words. Nonlawyers have an understanding of these words, but they mean very different things to a constitutional lawyer whose understanding is a result of reading supreme court cases that define and apply these terms.  It’s not even a question of legal training; it’s just about knowing how the courts define, apply, and/or establish the requisite elements of these important terms or terms of art.

The “unavoidably unsafe” concept is a legal doctrine that allows a product manufacturer to defeat a products liability claim. If there is no way to manufacture a product to make it safe, it is unavoidably UNsafe, and that means a person injured by the product cannot sue the manufacturer for a design defect because the product cannot be designed to be safe.

So the irony/stupidly of the vaccine concerneds’ “vaccines are unavoidably unsafe” mantra is that it really is a legal argument that vaccine manufacturers should not be liable for their products because they are unavoidably unsafe and cannot be made safe, which is exactly what the hardcore anti-vaxxers believe I think.

Thus, the “unavoidably unsafe” mantra is legally inconsistent with another of your grievances, namely that people injured by vaccines should have a civil right of action against vaccine manufacturers and not just the federal vaccine court remedy which most practitioners who work that side of law think is a joke and/or a kangaroo court.

And, it is also inconsistent with what some of you believe or (say anyway), namely that you are not against vaccines, you just want safer vaccines. The hardcore doesn’t think there can be safer vaccines and also believe that vaccines have never had a positive role in public health, versus the vaccine concerned who might be in favor of some vaccines, maybe spaced out more, or are waiting for safer vaccines.

My conclusion/suggestion is still the same as what I said back when I wrote the original post:  Because 1. The Supreme Court really never held that “vaccines are unavoidably unsafe” and 2. If you think vaccines are “unavoidably unsafe” then technically/legally, you are actually arguing that manufacturers should not be liable for their products, maybe it is time to frame your argument and opposition to vaccines in different terms.

I would suggest just talk about known harm, expected injury or something like that. For example, the COVID vaccines have been associated with a reported 500 plus deaths. That’s not a trivial number (especially if you or a loved one is one of those 500) and even though it might be a very small percentage of the 42 million vaccines given, that plus the 5k or so reported serious AE’s seems to lead to one conclusion: the COVID vaccine must be voluntary.

(Feb 14th update: the new numbers based on a recent CDC data dump is close to 1200 deaths and 11k AE’s or serious AE’s which is still a small number percentage-wise compared to the number of vaccines administered or the COVID death numbers, both absolute and percentage fatality rate.  These new numbers certainly reinforce the point that taking the vaccine should be voluntary.)

Short term, that is not going to be an issue because there is more demand than supply, and also because of the EUA status of the vaccines. But eventually, supply will catch up to demand, and full licensure/approval will be granted. If the 30 ish percent of Americans who say they are taking a wait-and-see attitude continues, then there won’t be herd immunity from voluntary measures.

Obviously, you can expect states to start introducing vaccine mandate bills, either by direct mandates, or indirect ones making the vaccine a condition of various state services or privileges. Expect some private employers to make the same decision, or just mandate them, which they can do easier than governments. That is when the new round of Jacobson lawsuits (against government entities) may be filed.

Recall that the Spanish flu, as bad as it was, only lasted two years, followed by a hundred years of recurring and changing flu strains.  Now there are vaccines for the seasonal flu, but only between 40% and 70% of states’ populations take it. So hopefully the authorities will have the presence of mind to realize that this too will pass without trying to inflict on citizens a universal mandate. I hope that is the case, but I wouldn’t bet the farm on it.

Rick Jaffe, Esq.