Congress, Have a More Thoughtful, Bipartisan Pandemic Post-Mortem

Richard Hughes IV, Partner, Epstein Becker Green

Some members of Congress are after Dr. Anthony Fauci again¹ – full of accusations against the now retired, octogenarian NIH veteran who tried to inject science-based decision-making into our national response to the COVID pandemic. Once again, lawmakers lobbed conspiracy theories about the origins of COVID and misconstrued decisions over mask and vaccine recommendations.

None of us, not even Dr. Fauci, could have known in February 2020 that the COVID-related death toll would reach the current estimates ranging from 7² to 35³ million globally. The staggering discrepancy in that range tells us we are still coming to grips with its toll. Nor could we predict that COVID would cause such unfathomable, disorienting economic and social hardships.

The emerging threats of unfamiliar pathogens require quick assessments and rapid actions with very little information on which to base decisions. Their impacts cannot be predicted. Sometimes they claim the lives of tens of millions like the 1918 Spanish flu⁴ or HIV/AIDS.⁵ Other times, they subside quickly or impact relatively few like the 2002-2004 SARS⁶ and 2012 MERS⁷ outbreaks.

The pandemic’s epidemiological ups and downs led to understandable clashes in scientific and lay opinion⁸ during the pandemic which continue to this day.⁹ Not all decisions made were perfect ones.

Some members of Congress¹⁰ have seized the narrative by combining its flaws with outright misinformation. This has included misrepresentations that COVID vaccines failed because transmission still occurred¹¹, ignoring the way we actually measure the effectiveness of vaccines, such as risk of infection, symptoms, and severity, along with secondary endpoints like hospitalization.¹²

Likewise, lawmakers have suggested that vaccines are forced, unconsented medical treatment, ignoring the fundamental public health role they play in building herd immunity to suppress threats against our society. A person who refuses individual medical care does not jeopardize his neighbor’s life. We did not mask, vaccinate or social distance only to prevent ourselves from acquiring COVID. We did so to reduce overall disease burden¹³, to protect our loved ones and neighbors from severe illness and hospitalizations.

It is astonishing how quickly we forgot the desperation and clamoring for vaccines to save human lives.¹⁴ Despite all of the unknowns, the public and private sectors came together, acting in good faith, to quickly mobilize and defeat the threat with a rapid, scientifically sound vaccination campaign. After they were delivered with much-demanded speed, the collective urgency has eroded public mistrust, astonishingly inflamed by members of Congress.¹⁵

Disagreements over how information is communicated are acceptable. To the point of Bruce Wenstrup, chair of the House select subcommittee on the COVID pandemic, during a March hearing¹⁶, the general public does not precisely understand what the FDA means by terms such as “efficacy.” The public health establishment must make improvements¹⁷ in the way that it communicates with the American people concerning epidemiology, vaccine ingredients, the way we measure a vaccine’s effectiveness and the population-benefit purpose of vaccinations.

In return, politicians should not stand in their way or throw rocks. Suggesting that the best possible scientific judgments about social distancing and masks were simply drawn out of thin air, is irresponsible. So are misrepresentations of epidemiology and vaccine science. Claiming that vaccines were authorized or mandated without adequate study fails to take into account the rigorous study of COVID vaccines, the meticulous balancing of risks and benefits that occurred, and the still ongoing, vigilant post-marketing surveillance of safety and effectiveness.

At this time, Congress should be focused on assuring readiness for future emerging disease threats. This is both a public health and national security imperative. Systems that foster the balance of sufficient liability protection, adequate injury compensation, sustained innovation and public trust are imperative to that readiness.

Our country has a bipartisan history of compensating the injured and shielding manufacturers from being inundated with lawsuits that would threaten the industry. Vaccines sometimes cause rare adverse reactions, and we must promptly and adequately compensate vaccine-injured persons so that they are not treated as mere collateral damage.

Past liability threats¹⁸ contributed to dwindling market participation that threatened our national readiness, which led Presidents Reagan and Bush to sign programs into law that provide both liability protection and injury compensation - the Vaccine Injury Compensation Program (VICP)¹⁹ and the Countermeasures Injury Compensation Program (CICP).²⁰ The viability of these systems is, in turn, essential to maintaining public trust.

Today, bipartisan efforts are sorely needed to address shortcomings in current compensation programs.²¹ Yet, some members are focused on tearing these systems down²² and opening a flood of lawsuits against vaccine manufacturers. This could pose a serious threat to already fragile vaccine markets and our readiness to respond to the next pandemic.

Misinformation is unacceptable, as is failing to properly engage those with sincerely held misbeliefs. Lawmakers and public figures have a duty to avoid such misrepresentations. We public citizens, too, share a collective responsibility, to humanity, to avoid tolerating or perpetuating misinformation.

Congress and our nation’s public health officials should take the current moment to self-reflect, with humility and cautiousness, and resolve challenges with public confidence in our public and scientific institutions.

Richard Hughes IV is a Partner at Epstein Becker Green

References

1. The Hill. (2024, June 3). Live updates: Fauci gives spirited defense to GOP claims of Covid cover-up. The Hill. https://thehill.com/policy/healthcare/4699893-fauci-covid-hearing-live-updates-nih-records/
2. World Health Organization. (n.d.). Covid-19 deaths | who covid-19 dashboard. World Health Organization. https://data.who.int/dashboards/covid19/deaths?n=c
3. The Economist Newspaper. (n.d.). The pandemic’s true death toll. The Economist. https://www.economist.com/graphic-detail/coronavirus-excess-deaths-estimates
4. Centers for Disease Control and Prevention. (2019, March 20). 1918 pandemic (H1N1 virus). Centers for Disease Control and Prevention. https://archive.cdc.gov/www_cdc_gov/flu/pandemic-resources/1918-pandemic-h1n1.html
5. Global HIV & AIDS statistics - fact sheet. UNAIDS. (n.d.). https://www.unaids.org/en/resources/fact-sheet#:~:text=85.6%20million%20%5B64.8%20million%E2%80%93113.0,the%20start%20of%20the%20epidemic
6. LeDuc, J. W., & Barry, M. A. (2004, November). Sars, the first pandemic of the 21st Century. Emerging Infectious Diseases. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3329048/
7. World Health Organization. (n.d.-b). Middle East respiratory syndrome coronavirus (MERS-COV). World Health Organization. https://www.who.int/news-room/fact-sheets/detail/middle-east-respiratory-syndrome-coronavirus-(mers-cov)
8. Collins, K., & Klein, B. (2020, August 4). Birx stung by first public attack from Trump | CNN politics. CNN. https://www.cnn.com/2020/08/04/politics/trump-birx-coronavirus-tweet/index.html
9. CBS Interactive. (n.d.). How fringe anti-science views infiltrated mainstream politics - and what it means in 2024. CBS News. https://www.cbsnews.com/news/anti-vaccine-science-politics-2024/
10. Ga rep. misrepresented science on efficacy of Covid vaccines and mask wearing. GA Rep. Misrepresented Science on Efficacy of COVID Vaccines and Mask Wearing | Sabin Center for Climate Change Law. (n.d.). https://climate.law.columbia.edu/content/ga-rep-misrepresented-science-efficacy-covid-vaccines-and-mask-wearing
11. Fact checks: Preventing transmission never required for Covid Vaccines’ initial approval; Pfizer Vax did reduce transmission of early variants | reuters. (n.d.-b). https://www.reuters.com/fact-check/preventing-transmission-never-required-covid-vaccines-initial-approval-pfizer-2024-02-12/
12. Collins, K., & Klein, B. (2020a, August 4). Birx stung by first public attack from Trump | CNN politics. CNN. https://www.cnn.com/2020/08/04/politics/trump-birx-coronavirus-tweet/index.html
13. Saadatian-Elahi M; Horstick O; Breiman RF; Gessner BD; Gubler DJ; Louis J; Parashar UD; Tapia R; Picot V; Zinsou JA; Nelson CB; (n.d.). Beyond efficacy: The Full Public Health Impact of vaccines. Vaccine. https://pubmed.ncbi.nlm.nih.gov/26808648/
14. Sun, S. (2022, August). The demand for a COVID-19 vaccine. Economics and human biology. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8928710/
15. Guardian News and Media. (2024, February 15). Marjorie Taylor Greene claims “bullshit” as expert says Covid vaccine saved 14m lives. The Guardian. https://www.theguardian.com/us-news/2024/feb/15/marjorie-taylor-greene-covid-vaccine
16. Assessing America’s Vaccine Safety Systems, part 2. United States House Committee on Oversight and Accountability. (2024, March 21). https://oversight.house.gov/hearing/assessing-americas-vaccine-safety-systems-part-2/
17. Saadatian-Elahi M; Horstick O; Breiman RF; Gessner BD; Gubler DJ; Louis J; Parashar UD; Tapia R; Picot V; Zinsou JA; Nelson CB; (n.d.-a). Beyond efficacy: The Full Public Health Impact of vaccines. Vaccine. https://pubmed.ncbi.nlm.nih.gov/26808648/
18. Pfizer, BioNTech and Moderna making $1,000 profit every second while world’s poorest countries remain largely unvaccinated - world. ReliefWeb. (2021, November 16). https://reliefweb.int/report/world/pfizer-biontech-and-moderna-making-1000-profit-every-second-while-world-s-poorest
19. National Vaccine Injury Compensation Program. HRSA. (n.d.). https://www.hrsa.gov/vaccine-compensation
20. Countermeasure’s injury compensation program (CICP). HRSA. (n.d.-a). https://www.hrsa.gov/cicp
21. The case for modernizing vaccine injury compensation. (n.d.-c). https://www.healthaffairs.org/content/forefront/insult-injured-case-modernizing-vaccine-injury-compensation
22. Text - H.R.7551 - 118th Congress (2023-2024): Liable act. (n.d.-c). https://www.congress.gov/bill/118th-congress/house-bill/7551/text/ih?overview=closed&format=xml