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Home » RFK Jr running mate Nicole Shanahan — anti-vaccine tropes

RFK Jr running mate Nicole Shanahan — anti-vaccine tropes


This article, about Robert F Kennedy Jr.’s presidential running mater Nicole Shanahan, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Law San Francisco, who is a frequent contributor to this and many other websites, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.

Professor Reiss writes extensively about vaccination’s social and legal policies in law journals. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines. This parent-led organization 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.

Anti-vaccine leader Robert F. Kennedy, who is running as an independent candidate for President, picked another committed anti-vaccine activist, Nicole Shanahan, as a vice president candidate, belying previous claims that he is not anti-vaccine. On May 2, 2024, Ms. Shanahan, in a series of tweets, showed she does not understand the anti-vaccine tropes her running mate and other anti-vaccine leaders sold her. Her lack of understanding of several basic facts emphasizes that for some anti-vaccine activists, their hostility to vaccines is not based on any real knowledge.

In fairness, after many responses, on May 3, 2024, Nicole Shanahan posted a tweet somewhat correcting her previous errors, though still making new ones. But her initial lack of information should be a warning sign not to accept anything she says about vaccines without careful fact-checking, and again, an indication that her opposition to vaccines is not based on any real understanding of the facts on the issue. I will include the relevant parts of that tweet under each topic, though people can look at her full tweet above. 

This post gives me a chance to address her errors and provide some useful information about the three issues she has so thoroughly confused: the Vaccine Adverse Events Reporting System (VAERS), the Vaccine Injury Compensation Plan (VICP), and the Countermeasures Injury Compensation Program (CICP). I will try to keep the discussion short, largely by referring, for more details, to previous work.

Nicole Shanahan and her confused Tweets

On May 2, 2024, in response to an unverified Tweet by a person named “PeterSweden” alleging that AstraZeneca — whose vaccines were used in parts of Europe — is facing “a whopping 255 million compensation to victims that got their injection,” Nicole Shanahan wrote the following:

In the United States, VAERS is the body that determines if someone injured by a vaccine can be compensated. Here’s the dirty truth: Tax payers cover all expenses for this (all legal fees and the payout), not the pharmaceutical company actually responsible for the injury. That means these companies can make you sick, get paid huge profits from selling the injections, and the taxpayers are the ones on the hook for their mistakes. As the Covid vaccine is proven to be responsible for more and more injuries, this scheme promises to take our country even further into debt. The correct course of action is to return to standard tort liability for all vaccine developers. It is the right thing for our country, for our budget, and is even in the best interest of the vaccine developers who will be held to a higher standard in safety.

This tweet is full of basic errors. It is not even up to the level of disinformation or misinformation we usually see from anti-vaccine leaders — it simply shows a complete misunderstanding of the basics of vaccine injury compensation in the United States, what happens with COVID-19 vaccines, and what VAERS is.  The last comment also suggests that Ms. Shanahan does not understand how vaccine safety is monitored in the United States.

Let’s take this in order.

Nicole Shanahan does not know what VAERS is

Or did not, since between this bad tweet and the next day, someone told her something, though what she was told was still wrong. 

The Vaccine Adverse Events Reporting System is one of our electronic systems for monitoring vaccine safety – one of four in the USA. Anti-vaccine activists like to misuse VAERS to claim vaccine harms are higher than they are because VAERS is an open database anyone can report to, and without verification, the reports cannot be assumed to be correct, and certainly do not show that vaccines caused any harm.

So, you have a system anyone can report to, where reports go up when there’s close attention to vaccines, and that can be used to say “Look at these numbers!”. That is why some anti-vaccine activists made a career out of misusing VAERS reports to mislead followers about VAERS and its features. One anti-vaccine activist created a site that pulls on VAERS data while dropping the cautions the actual site has, so users won’t know they are being misled. 

It’s unsurprising that consumers of anti-vaccine misinformation like, apparently, Ms. Shanahan, have heard of VAERS. But she seemed to thoroughly misunderstand it.

VAERS is not a “body.” It’s a database run jointly by CDC and FDA. It does not address compensation at all. 

In her second tweet, on May 3, 2024, Nicole Shanahan corrected herself, but her tweet is still misleading in describing VAERS by omitting many important facts. The new tweet says:

The Vaccine Adverse Event Reporting System (VAERS) accepts reports on suspected vaccine injuries from injured individuals or their doctors and then analyzes those reports for validation and data collection.

How is this misleading? VAERS accepts reports from anyone. There are reports on VAERS from people who read things on the internet. There are reports of things that happened a long time after the vaccine. There are reports of things that are unrelated or are not injuries.

It does not show the adverse event happened at all. It certainly does not show causation. VAERS reports can and are used by scholars who do careful works in some legitimate ways, and are part of our apparatus of vaccine monitoring – though there are other systems — but they need to be used very carefully. 

man in black suit jacket touching his face
Photo by Andrea Piacquadio on Pexels.com

Nicole Shanahan misunderstands vaccine compensation

Nicole Shanahan makes several errors here. Among the bigger ones are conflating the National Vaccine Injury Compensation Program (I’ll refer to it as VICP, as is more common now than NVICP) with the Countermeasures Injury Compensation Program (CICP), and misunderstanding how either works. 

I went through a thorough discussion of both programs here. I also address why the no-fault compensation approach in the vaccine injury compensation program is a good idea and why presenting it as wrong against people seeking compensation for vaccine harm is a mistake here. In this post, I will focus on Ms. Shanahan’s errors. 

Putting aside the fact that VAERS is not where you determine if someone was injured by a vaccine, people indeed claiming harms from vaccines need to, initially, go to VICP, and for some claims – design defect claims – they cannot go to regular courts at all, though for other claims they can. This program is a result of a compromise created by Congress in the 1980s to address two problems — a potential vaccine shortage as manufacturers were leaving the market due to lawsuits, most of which failed, but a few of which won large damages; and complaints by plaintiffs about how difficult it was to be compensated for vaccine harms. For those looking to learn more, I recommend Anna Kirkland’s great book, Vaccine Court, from New York University Press. 

VICP offers claimants several important advantages over a regular court, including not having to show anything except that the vaccine caused the harm — and they have some important breaks in showing causation, too — and their damages, having lawyer fees and expenses covered, and having more lax rules of evidence. It has some drawbacks, like a shorter statute of limitations, and caps on some types of damages – and currently, a backlog. But it is, actually, an easier system, and though it can be improved, has real benefits. That logic is why multiple countries have such compensation programs.

Ms. Shanahan’s errors about them include wrongly claiming the program is financed by “the taxpayer.” In reality, VICP is financed by an excise tax on the manufacturers, by vaccine dose. The manufacturers, of course, roll that cost on customers – just as if there were regular lawsuits, they would be rolling those costs on the customers, either by raising prices to directly cover litigation costs (as they did in the 1980s), or by raising prices to cover the cost of buying more liability insurance. I’m not sure how Ms. Shanahan thinks companies usually finance litigation, but it does get to the consumers eventually.

So it’s untrue that “taxpayers are on the hook” for companies’ mistakes. Further, the implication that there is no recourse to court is also untrue. Although some causes of actions are barred, others can go to court. Anti-vaccine leader Robert F Kennedy Jr., Shanahan’s running mate, is currently involved in large-scale (and probably unfounded) litigation against Merck over its HPV vaccine. If she asked him, he could tell her that you can litigate vaccine injuries after going through court – if he chose to be honest with her. 

And the VICP does not cover COVID-19 vaccines. 

Further, returning to “standard tort liability” will not be a good thing even for childhood vaccines, and less so for vaccines during a pandemic. It will make it much harder for claimants with real claims to win, since they would have to prove more elements, and the types of evidence they can bring into court would be more limited. It would mean more of any awards will go to lawyers, who will be bringing cases on contingency and whose costs would not be covered by the program, as they are now. And it could lead to manufacturers leaving the market again, and fewer vaccines available to protect children.

It might lead to some unfounded cases winning if a lay judge with less expertise than the special masters in vaccine court is misled, but it won’t help claimants with good claims, because they will have to show more and lose a large part of any award. 

This is a good move only if you value lawyers litigating tort cases over deserving claimants, prefer a slim chance of winning on bad claims over compensating valid claims, and do not care about children getting sick.

In her second tweet, Ms. Shanahan somewhat corrected course by saying:

The National Vaccine Injury Compensation Program (NVICP) is a no-fault compensation system for those who allege vaccine injury from traditional vaccines.  All settlements are funded by taxpayers, not the manufacturers of the product.  5.2 billion dollars have been paid out to date.

But only somewhat, since, as mentioned above, she repeated the error about taxpayers and added an old anti-vaccine trope emphasizing the amount paid for claims “to date”, not telling readers that this is over the years since 1989 when the program started.

This amount by itself is also misleading, by leaving out important context. For example, it does not tell you that this number comes from somewhat over 8500 compensated cases in over 30 years, most of which were compensated in a settlement when the government usually denies causation, or that this is out of over 5 billion vaccine doses – a rate of compensation of less than 1 per half a million, in a program less demanding than the courts. It also does not tell you that in recent years, about half of cases in the program involve shoulder injury from vaccine administration – SIRVA – in adults, something the manufacturers have nothing to do with.

The COVID-19 vaccines are covered by a different program, the Counter Injuries Compensation Program, which is much harder to use, since it has a higher burden of proof and a shorter statute of limitations. It also comes with stronger liability protections for manufacturers, making access to the courts harder. I have argued previously that this program is not a satisfactory answer for compensating COVID-19 vaccine harms. 

But Ms. Shanahan is still wrong about that program too, both in her original tweet and in her correction. Here is her correction:

The Countermeasures Injury Compensation Program (CICP) is similar to the NVICP, but focuses on the products considered countermeasures during a public health emergency like the Covid Vaccine.

First, as I just pointed out, the CICP is not similar to NVICP/VICP. There are important and meaningful differences.

The program indeed focuses on countermeasures during a public health emergency, and here is where Ms. Shanahan’s initial claim – that we would be better off returning to the standard tort system – falls flat. It was adopted as part of the legal change that created the current provisions about emergency use authorizations. The goal of this protection is to encourage and promote the creation and deployment of products that would help respond to an emergency. The rationale is that liability concerns can slow down manufacturing and access. 

Ms. Shanahan gives no attention to those concerns. As a reminder, extensive evidence shows that COVID-19 vaccines saved many lives, and their risks are small. Sending claims to the regular torts system would likely have made manufacturers hesitate or slow – at the cost of lives and disease. Further, torts claims would run into the issues above – hard to prove, and much of the award going to the lawyer.

A better solution for COVID-19 vaccines would be to create a separate and easier no-fault system for them, or to send them to VICP – in which case, VICP would need more resources (it already needs them, and it’s a shame statutes seeking to increase the numbers of special masters are not moving forward). 

person s hands on top of macbook air
Photo by Christina Morillo on Pexels.com

Conclusion: Ms. Shanahan needs to Learn More About Monitoring Vaccine Safety

Vaccine safety in the United States is subject to more oversight than any other product. As mentioned above,  there are multiple monitoring systems overseeing vaccines, and multiple federal advisory committees are looking at it. Even before COVID-19, the United States was not alone in this; multiple countries monitored vaccine safety. COVID-19 vaccines have been subject to more monitoring and oversight than before and there is data on their safety from all around the world.

When the leaders that confused Ms. Shanahan about VAERS told her COVID-19 vaccines are causing a lot of harm, they ignored this abundant data and misled her, just as they misled her about vaccine compensation.

VAERS is a database, not a compensation system, and is being misused by the leaders misleading Ms. Shanahan to make her think things that are not true. The compensation system for routine vaccines is better for claimants with valid claims than the tort system. And although our compensation for COVID-19 vaccine harms needs work, what Ms. Shanahan is proposing is not the right answer.

I hope Nicole Shanahan does her homework before speaking on vaccines again. In an ideal world, she would take the corrections, learn, and consider that her leaders may be misleading her about vaccines in other ways, too.

Dorit Rubinstein Reiss

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