This article about another ICAN lawsuit disputing the CDC statement that vaccines do not cause autism was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
On March 31, 2022, a federal district judge dismissed the Informed Consent Action Network‘s (ICAN) lawsuit demanding that CDC remove the statement that vaccines do not cause autism. The judge dismissed the lawsuit because ICAN failed to show that the alleged harms it claimed were caused by anything CDC did, or that removing the statement would fix the problem that they claim they identified.
The claim never got to be examined on the merits, and for the purpose of dismissal at this early stage, the judge is required to treat ICAN’s claims as true. But it’s worth reminding readers that extensive data shows that vaccines do not cause autism.
The Informed Consent Action Network is an anti-vaccine organization that has, for a long time, tried to mislead its followers by misrepresenting the results of Freedom of Information Act (FOIA) requests to the CDC and FDA.
ICAN has a pattern (several, but this focuses on one). ICAN asks for something that is not likely to be an agency record, or that it knows is not there in the specific form that they are requesting. FOIA is a tool for asking agencies for existing records (but not for asking queries for which there are no records). The agency comes back with the routine answer that the material was not found after a search (because it’s not a record or because the request was manipulative).
Del Bigtree, ICAN’s founder, goes on his show – or ICAN or ICAN’s lawyer, Aaron Siri, puts out an announcement through a press release or post – and claims that the lack of records shows some claim – about vaccines safety, or about the benefits of vaccines – is untrue. This is dishonest since the only thing the agency’s answer shows is whether the agency has a record on point. To give one example, scientific studies are not usually agency records, and the agency won’t be able to track them down by searching its records. Mr. Bigtree may not, initially, have knowns that, but his lawyer likely does know that, and should have told him. And yet, ICAN plays this scenario repeatedly.
The specific saga, according to the court decision, dates back to 2017 when ICAN started asking CDC for data about vaccines and autism. I became aware of it when in March 2020 ICAN alleged that a recent settlement of a FOIA suit showed that CDC does not have evidence that vaccines cause autism. ICAN’s claim was untrue.
All that happened was that, likely under pressure from the Department of Justice to settle a case that was not worth their time, CDC sent ICAN a list of about 20 studies about vaccines and autism. The studies cannot be used to show much besides the fact that there are studies about vaccines and autism. They cannot be used to draw conclusions that vaccines cause autism, because they show the opposite. They certainly cannot be used to draw the conclusion ICAN tried to draw from the settlement, that there is no basis to claim that vaccines do not cause autism, as I discussed in my post about that FOIA settlement.
Then, on January 21, 2021, ICAN claimed a win because, apparently, the CDC changed the heading “Vaccines do not cause autism” to “Vaccines and autism,” even though the very next line on the page, in both versions, said, “There is no link between vaccines and autism.” ICAN’s alleged win was never a real win, and suggested, at best, sloppy reading of the CDC’s page, at worst, intentional dishonesty.
I’m more inclined to think it’s a mistake because it was such an obvious non-win and something they would likely be called out on – it’s below their usual standard of at least semi-competent disinformation. But ICAN chose not to admit the error and retreat, but to double down on it. Even when it was pointed out to it that the site still says that “there is no link between vaccines and autism, ICAN member Patrick Layton insisted this is a big win. Even if the initial claim was an honest error, the doubling down was not.
On May 7, 2021, the decision explains, ICAN filed their complaint demanding that CDC remove the language. The state department asked the court to dismiss the complaint, and the parties exchanged letters. As mentioned, the court dismissed the complaint about “lack of subject matter jurisdiction,” finding that the plaintiffs did not show standing. What does that mean?
ICAN’s complaint dismissed for lack of standing
In the United States, a party must have “standing” to bring a case. The idea of standing is that cases are best brought by – and best argued – by parties with a personal stake in the proceeding, on the assumption that these parties will do their best to make the case. In practice, this means that a party cannot bring a case just to counter government wrongdoing or make the world a better place, but needs to show a personal connection. Note that there are countries that do allow litigation of abstract claims, but the USA chose not to. Also, note that the interest does not need to be noble or justified (though it cannot be blatantly illegal). It just needs to be concrete and specific.
To show standing, as summarized by the court, a party must show three things:
(1) injury-in-fact, which is a ‘concrete and particularized’ harm to a ‘legally protected interest’;
(2) causation in the form of a ‘fairly traceable’ connection between the asserted injury-in-fact and the alleged actions of the defendant; and
(3) redressability, or a non-speculative likelihood that the injury can be remedied by the requested relief.
Since ICAN is an organization, it needs to show what is known as organizational or associational standing. Organizational standing focuses on harm to the interests of the organization. Associational standing is when the organization brings suit for harm to the interests of its members. ICAN tried to argue both. The court accepted its claim of a particularized injury to its organizational interests but ruled that ICAN did not meet the causation and redressability requirements. It found that ICAN did not make a case for an injury to a particular interest of its members.
ICAN argued that “they have, and continue to, divert significant time and resources from other organizational efforts to investigate, identify, and expose the lack of scientific support” for the link between vaccines and autism. They have “have participated in lengthy email correspondence with HHS, submitted several FOIA requests seeking studies relied upon by HHS, and held face-to-face meetings with agency officials.”
Two things to remember: first, at this early stage of the proceeding, the court needs to take ICAN at its word, to treat its claims as true, because if the case is rejected on no standing, ICAN does not get a chance to prove its claims. Second, it doesn’t matter if the interest involved is good, noble, or justified. It just has to be a real (and legal) interest of the group to allow it to make its claims, to allow it to try and argue that it is right on the law and its application.
The precedent cited by the court shows that having to devote resources to respond to a policy counts as a specific interest of an organization. Therefore, by showing that the CDC’s statement that vaccines do not cause autism led it to divert resources to fighting it and trying to prove it’s not true, ICAN has made enough of a claim to meet the first requirement of standing, that it has a “concrete and particularized” injury. The fact that the CDC’s statement is true – vaccines do not cause autism – and that ICAN is devoting the time to misleading others doesn’t change its interest.
And yes, this line of precedent opens the door to many organizations to challenge the government on issues they care about.
Even though ICAN cleared the first requirement, it failed, the court concluded, to meet the others. The court concluded that their claim that “removal of the CDC Statement would somehow coerce independent researchers, none of whom are parties to this lawsuit, to begin studying and publishing research on the vaccine-autism connection for babies” is “purely speculative and conjectural.”
The core of the claim is that the CDC’s statement “chills research on whether certain vaccines cause autism in babies”. As the court pointed out, it’s unlikely that HHS controls that, or that the reason for the lack of focus is not, instead of CDC’s statement, the fact that there is a scientific consensus beyond CDC that vaccines do not cause autism and other priorities in vaccines research.
The court could go further and point out that the lack of additional research can be explained by the fact that there has been a lot of research on this issue; it’s not an unstudied issue. It could also point out that the actual causal link is from the existing scientific consensus to CDC’s statement, not the other way. But what it covered is enough to find that ICAN did not demonstrate a causal link between the alleged injury and the conduct it’s trying to challenge.
Further, the court points out that ICAN also failed to show the third prong of redressability – the fact that granting their relief would address the injury they’re complaining of. There’s no basis to think that if the CDC removed its statement, ICAN would stop trying to advocate for more research on the vaccines/autism link, or by itself generate more research that would make ICAN’s efforts to prove the link unnecessary.
ICAN appeared to have made a few claims for members, including anti-vaccine pediatrician Dr. Bob Sears, who is, allegedly, harmed by the CDC Statement because there is no research available for them to rely on to advise parents “regarding the risk of autism from vaccination for their babies.”
The court found that this concern is not different or special than a general concern of the medical community (a concern, by the way, the medical community generally does not have, since most of its members accept the scientific consensus that vaccines do not cause autism). The injury has to be specific, not general.
The plaintiffs also mentioned the claim of people like the McDowell parents who, apparently, blame their children’s autism on vaccines, but as above, they did not show causation and redressability, since there’s no evidence that researchers will start again looking at the vaccines-autism link if the CDC removes the statement.
ICAN has tried in a variety of ways to get the CDC to remove the statement that vaccines do not cause autism, and has prematurely announced a win (and the fallout from that premature statement may have been why they decided to bring what they likely knew was a low-chance lawsuit). The court found they did not even appropriately show cause to admit their claim into the judicial chamber — they did not make enough of a case that they had a legal stake in it.
ICAN would likely continue working to convince parents that vaccines cause autism, even as the data shows otherwise. But in this round, too, it was unable to force the CDC to help it mislead parents.
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