Robert F Kennedy Jr used Alan Dershowitz in anti-vaccine fake debate

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This article, about an anti-vaccine fake debate between Robert F Kennedy Jr and Alan Dershowitz was used to promote anti-vaccine misinformation, 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 disease.

On July 23, 2020, anti-vaccine activists aired what they described as a heated debate between Attorney and Professor Alan Dershowitz and anti-vaccine activist Robert F Kennedy Jr. The “debate” was a good example of why debating anti-vaccine activists is a bad idea.

Basically, Kennedy did most of the talking, and most of his talk was not – as initially suggested – about the law, but a recitation of anti-vaccine talking points, most of them either misleading or blatantly untrue. Dershowitz, who is not a public health expert or a debunker of anti-vaccine misinformation, was not prepared to address them. While he did push Kennedy on some issues, with Kennedy’s misinformation left unaddressed, viewers may come out with the impression that Kennedy’s points had merit.

The points do not. Robert F Kennedy Jr consistently misrepresented the facts, and was not quite accurate on the constitutional law, though he was closer. He misrepresented the regulatory framework on vaccines. In essence, Kennedy used this as an opportunity to share misinformation while using Dershowitz’s comparable legitimacy to give weight to his claims.

President John F Kennedy, RFK Jr’s uncle, strongly supported all science. Including vaccines.

The setup for the fake debate

On July 12, signs went up on anti-vaccine pages about a live debate between Robert F Kennedy Jr and Alan Dershowitz. I will mention that I emailed Prof. Dershowitz on July 13, both to suggest it would be a bad idea and to point out some common points of misinformation that would likely come up.

I had not been in touch with Prof. Dershowitz before. I had read one of his books when I was in law school, but that was over twenty years ago. From my point of view, he was walking into a trap, and I wanted to warn him.

Prof. Dershowitz responded with a thank you and then said: “The discussion was taped last week. I didn’t debate the science; I debated only the law and morality.” In other words, on July 13 – when the exchange occurred – the debate was already recorded, and anti-vaccine sites were not correctly representing the situation. When Mr. Kennedy, on July 18, told his followers: “Don’t miss my live debate on vaccine mandates with Alan Dershowitz on Thursday, July 23 at 8:45 a.m. ET,” he was knowingly misleading them.

This is not an important aspect of the debate. But it is an example of Robert F Kennedy Jr’s willingness to misrepresent.

Vaccine mandates and the law

The closest Robert F Kennedy Jr came to being accurate is in discussing Jacobson v. Massachusetts, and there, too, his discussion was not complete. The debate opened with a previous quote from Dershowitz that said that the state has a right to compel people to be vaccinated, that there is no constitutional right not to be vaccinated, and that “the state has the power to literally take you to a doctor’s office and plunge a needle into your arm.”

Dershowitz clearly had in mind the famous case of Jacobson v. Massachusetts (1905). But on this, I agree with Kennedy on two points:

  • First, that the facts in Jacobson itself were different than the extreme example of plunging a needle into an arm – in Jacobson, the penalty was a fine.
  • I also agree that in the decades since Jacobson, the jurisprudence has moved towards a stronger emphasis on bodily autonomy.

While Jacobson has been cited in the extensive jurisprudence upholding vaccine mandates in the United States, it has generally been cited for the jurisprudence on mandates applying to children. The extent of its application to adult mandates has not been carefully examined in the past century and can be questioned

That said, Jacobson does stand for the principle that individual rights may have to give way to reasonable public health regulation.  Further, every year in the United States individuals are required to undergo medical treatment, when the treatment is both in their interest and necessary to prevent harm to others.

It’s not done in the context of vaccines. It’s done in the context of infectious diseases – for example, tuberculosis

There is a long history of oppressive measures against people who may be infectious in the United States, up to lifelong imprisonment, as happened in the case of Typhoid Mary. And that has been routinely upheld. So in extreme circumstances, a vaccine mandate for adults could be upheld – it would depend on the facts.

Basically, the question of the constitutionality of an adult vaccine mandate would depend on the facts. I think that’s where both discussants ended up, and while I may disagree with some of their specific points, I would agree on that.

Mandates focusing on children, on the other hand, have routinely been upheld, and that is likely to continue because vaccines serve the important twin interest of protecting the child and the public. 

Robert F Kennedy Jr’s misrepresentations on vaccines science and policy

The disagreement between the two discussants – and between me and them – was not so much in the realm of the law. Where the issue lies is that Kennedy is both a believer and a creator of anti-vaccine misinformation. And most of his discussion focused on those.

The discussion went on for over an hour, and most of the claims in it have been debunked before. I do not think it is worth the time to go over every single anti-vaccine claim. I have decided to address this by addressing the first set of claims Kennedy made in some detail, and then going into some of the other points, but not all. I hope that this will allow me to keep this post within reasonable bounds, and still show that Kennedy’s claims in this debate should be treated with strong skepticism.

Kennedy opened his list of anti-vaccine claims with two comments that deserve a moment. The first comment was a question:

Why do so many Americans no longer trust the process?

As someone who has previously addressed misinformation provided by Mr. Kennedy, it’s hard not to point out that one reason there is mistrust in vaccines is that Mr. Kennedy and people like him work hard to create mistrust, to cast fear, uncertainty, and doubt on vaccine safety. And still, most people do vaccinate.

Second, Mr. Kennedy pointed out that vaccines are given to healthy people, and therefore need to be held to a high standard of safety. He is right. And vaccines are held to a high standard of safety and are extremely safe – much more than other products. They are also extensively regulated and subject to a lot of oversight

Robert F Kennedy Jr obviously does not think that, and the next set of claims, where he tries to prove that vaccines are unsafe, is grossly inaccurate.

Kennedy claimed, based on a 2010 report, that the “said actual risk of vaccine injury is 2.6%. One in 40 people seriously injured by vaccines.”

The report in question was addressed by my friend, Dr. Vince Iannelli, in an article in Vaxopedia,  where he pointed out: “It is very important to note that all the study found is that all possible reactions, including minor reactions, like pain and fever, are not common.”

In other words, the 2.6% number did not refer to serious events, but to all possible vaccine reactions, including mild ones. A 1:40 risk of any reaction is very different than a 1:40 chance of a serious reaction – most of us would live with an achy arm for a few days to protect against a potentially fatal disease.

Further, the reactions were possible reactions –  there was not an investigation to see which were caused by vaccines. This number is an upper bound for all possible vaccine reactions.

The claim that this 2010 report shows that 1 in 40 is “seriously injured” by vaccines is simply untrue.

Kennedy pointed out that “vaccine court has paid out 4 billion dollars” – which is true, but misleading – those 4 billion dollars were paid over 30 years, and reflect a rate of compensation of about 1 per million vaccine doses. 

While 4 billion may seem a lot, it is not actually a large sum in tort compensation over 30 years. To give an example, in Tenuto v. Lederle Labs, a jury awarded a man paralyzed by the oral polio vaccine – a very rare but real harm – 22.5 million dollars – and a court upheld it as not excessive. 

A serious injury, leading to paralysis or brain damage, costs millions – so even though they are rare, over 30 years, these rare injuries add up. It is also important to remember that the requirements of vaccine court are lower than those of civil court – there is no need to show a product defect or negligence, the causation requirements are lower, and the rules of evidence simpler. 

Kennedy continues by stating that “fewer than 1% of people that are injured ever even get to court.” It is not clear what his basis for saying that is. There is no study or data set that shows that.

My best guess is that he confused the anti-vaccine claim that less than 1% of harms are reported to the Vaccine Adverse Events Reporting System – another inaccurate claim based on the report already discussed – with the rate of people going to court. But at any rate, there is no basis for it.

Robert F Kennedy Jr continues and states:

…vaccines are zero liability…. DTP caused brain injury in 1 out of every 300 people. And they said to congress, we cannot make vaccines safely. They’re unavoidably unsafe. That is the phrase in the statute. The only reason if we are going to continue to make vaccines is if you give us complete blanket immunity from liability. So you have a product that if it injured you, no matter how negligent the company was, no matter how sloppy the line protocols, no matter how toxic the ingredients they choose to use, how grievous the injury you cannot sue that company.

This, too, is misleading in many ways. For one thing, even at the time when DTP was thought to cause brain damage – in the 1980s until larger studies were done – the claim was not that it was 1:300, but that it could rarely cause such harm. Even that claim was shown to be incorrect

I recently addressed this in discussing Wakefield’s latest misleading movie. I will simply quote what I said there – the references are in the post.

The main scientific evidence connecting DTP to brain damage was a large study by Miller, in the UK. However, that study was misanalyzed by Miller.

Actually looking at the evidence showed, as explained in Dr. Paul Offit’s book,]Deadly Choices (quoted in Vaxopedia):

In his study David Miller maintained that seven children had developed brain damage within a week of receiving DTP. But a closer look showed that these cases weren’t what they were claimed to be. Three of the children had been incorrectly labeled as brain damaged when in fact they were normal both before and after vaccination. Three others had suffered viral infections and one Reye’s Syndrome (a severe neurological problem found later to be caused by aspirin, not vaccines.) Miller’s conclusions lay in ruins.

Basically, the study’s conclusions mischaracterized the data. Other studies reinforced that conclusion:

The results of a number of controlled studies between 1979 and 2004 indicated that no risk of severe neurologic disease after DTwP vaccinations existed [66–76]. It was noted by myself and Shields [77] (a pediatric neurologist) that what was being called pertussis vaccine encephalopathy was not an encephalitis-like event but, instead, the first seizure or seizures of infantile epilepsy.

These studies are also detailed in Dr. Offit’s Deadly Choices.

Further, the claim of zero liability is simply untrue. There are limits of liability – specifically, under the current law, as interpreted by the Supreme Court, you cannot sue for vaccine injuries caused by a design defect.

But you can bring other kinds of claims, including negligence claims, and certainly fraud claims. And Mr. Kennedy knows that, because Mr. Kennedy is involved in just such a lawsuit against a vaccine manufacturer – Robi v. Merck, suing Merck for alleged harms from Gardasil, claiming both fraud and negligence. In other words, when Mr. Kennedy claimed that you cannot sue at all, and cannot sue for negligence, he was saying something he had to know was untrue.

I will not go through all his other points, because this post is getting long as it is, and I think this section already shows that Mr. Kennedy’s claims were full of inaccuracies and what are, most likely, blatant misrepresentations. But I do want to address some of his more egregious claims, if shortly.

Kennedy alleged that vaccines were not tested against a placebo. That is untrue. In the phase III discussion here, multiple placebo trials are cited. This twitter thread also lists and links to many such trials

Further, his implication – that saline trials are always the correct trials – reflects a lack of understanding

Mr. Kennedy alleged that:

…nobody knows the risk profile of any vaccine that is currently on the schedule. And that means nobody can say with any scientific certainty that that vaccine is averting more injuries and deaths than it’s causing.

But vaccines are extensively tested, and there is abundant evidence on their risks and benefits – evidence that led the Academies of Science, Medicine and Engineering, the United States’ primary independent scientific body, to conclude “Vaccines are safe… They have many health benefits and few side effects,” based on abundant evidence that the body examined.  In reality, vaccines are tested more and monitored more than other products. 

There were many more claims, but I promised myself I will keep this under 3,000 words because honestly, Kennedy’s claims have been addressed so many times in other places, spending longer is likely unjustified.

Kennedy also worked hard to present the Moderna vaccine trial in the worst possible way. I will say that my friend Skeptical Raptor has real concerns about that trial. 

My view is that we need to demand and preserve oversight over the trial. But some of the arguments used by Kennedy against that trial were also inaccurate. For example, Kennedy claimed animal testing was skipped. That’s inaccurate. What did happen is that Moderna was allowed to proceed to human trials before the animal trials ended. But they did happen – here is a report

I had and have concerns about allowing the vaccine to proceed to human trials without that testing, but accuracy matters. Further, Kennedy overstates the severity of adverse events. He claims 26% of the participants had events severe enough to be hospitalized.

Here is an interview with one of the people who had a “severe” adverse event. He felt very bad for one day, and went to urgent care. He was fine the next day.  Note that “severe” is a category to assess the level of the reaction. For example, a 39 degree Celsius fever is “severe”. It does not mean the person suffered longterm or life-threatening harm. That would be described as “serious” – and “no serious adverse events were noted” in the trial. 

The severe adverse events were flu-like symptoms, none leaving lasting harm.  One participant withdrew because of “transient urticaria”, a local reaction.  Because over 20% of the high-dose group had adverse events characterized as “severe”, that dose will not be used. This was not enough reason to prevent the low-dose versions from going to the next stage of trials.

We should carefully watch the vaccine approval process of the new Covid-19 vaccines.  In fact, the Advisory Committee of Immunization Practices created a special workgroup to do just that.  But criticism of the process needs to be based on facts, not the misinformation.

About this debate – summary

This post shows that Robert F Kennedy Jr’s claims in his debate with Dershowitz were grossly inaccurate and misleading. I want to say a final word about the desirability of debates like this.

Kennedy claimed in the video that the unwillingness to debate him is a problem because the heated debate is part of the way policy is crafted in the United States, and the unwillingness of scientists to debate him is a problem from a First Amendment point of view.

But Kennedy is not arguing about policy. He wants to have a chance to cast doubt on the science, without doing the work of collecting data, analyzing it according to scientific methods, or even taking seriously those who actually did that work. Scientific knowledge is not discovered through televised debates or talented oration, but through scientific studies and data that adhere to strict methodological requirements that Kennedy is not versed in.

The marketplace of ideas is not where that knowledge is discovered or even assessed. Further, the First Amendment does not require others to help Kennedy gain a platform for his misrepresentations.

One reason scientists versed in vaccines do not debate Kennedy is exactly his history of saying untrue things on the subject. His first article in 2005 was grossly inaccurate, and he has continued making untrue claims since

And the doctors he complains refuse to debate him, like Peter Hotez and Paul Offit? Kennedy launched untrue personal attacks against both people; why would they engage him? (For a detailed discussion of Mr. Kennedy’s attacks on Dr. Offit see Dr. Offit’s book, Bad Advice).

The reality is that science is not, and should not, be done in theater. And scientists don’t usually try. Kennedy wants a debate because theater is his area. He can try and score points by casting doubt on the science. He does not have too, and does not even seem to try particularly hard to, stick to facts; he can say extreme things and put the burden on his opponents to bring in detailed (and dry) facts to correct him and take advantage of the fact that nuances don’t work as well as soundbites in a theatrical debate.

This is why treating Kennedy as an equal partner in a debate is a mistake. He is not an honest debater. He is not there to explore the truth. He is a science denier out to misinform.

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Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), 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 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 disease.