Old Legislation Challenges Potential Vaccine Policy Changes
As head of the nation's health department, Robert F. Kennedy Jr. has significant power to shape national vaccination policy. In the past year, he replaced all 17 members of an important immunization advisory panel and dismissed the head of the national disease control center after a disagreement about vaccines.
However, Kennedy's powers have boundaries.
Recent reports suggest that Kennedy was preparing to discard the existing child vaccination schedule in the U.S. and adopt Denmark's recommendations. Such a move, however, can't be accomplished with a simple press conference, legal experts say.
Leaders like Kennedy must adhere to the Administrative Procedure Act (APA), a piece of legislation passed by Congress. The APA mandates that federal officials must follow an open, deliberative process when setting rules and regulations. Kennedy does have the ultimate authority to determine federal policy, but he must follow a reasoned process.
A Desire to Decrease Vaccination Numbers
A planned announcement by Kennedy was called off at the last minute. Reasons cited were scheduling issues, but some reports suggest the cancellation was due to legal and political concerns surrounding his plan to overhaul the vaccine schedule. There were hints that the press conference would be rescheduled for the new year.
While no official confirmation was provided about Kennedy's plan to change the vaccine schedule, his history as an anti-vaccine activist and his enthusiasm to revise the immunization schedule are well-known. The President recently directed the health department to align the vaccination schedule with countries like Denmark, a directive that Kennedy publicly thanked.
However, experts advise Kennedy to tread carefully to avoid potential policy changes being rejected by a judge.
The APA allows courts to dismiss actions, findings, and conclusions of an agency if found to be arbitrary, capricious, an abuse of discretion, or not in accordance with the law. A mere press conference announcing the adoption of Denmark's vaccine schedule could leave the administration vulnerable to claims of arbitrary and capricious behavior.
Adhering to Established Procedures
For over 60 years, the Advisory Committee on Immunization Practices (ACIP) has been responsible for setting vaccine recommendations. The committee usually votes on national recommendations after studying medical evidence and seeking input from experts and the public. The head of the disease control center can accept or reject those recommendations.
The recommendations from the disease control center are not mandatory. Even if Kennedy were to adopt Denmark's vaccine recommendations, states would not be compelled to do the same. While the center's recommendations carry weight, each state decides its own school vaccine requirements.
Experts suggest that any changes to federal vaccine policy that bypass the ACIP are unlikely to be viewed favorably by a court. If the administration wishes to follow Denmark's example, it needs to thoroughly address major issues and provide a logical explanation for the change.
The President's memo, experts say, carries little to no legal weight. The will of the President alone is not sufficient to justify a policy change; the agency must also justify the decision on its own merits.
Legal Challenges to Administration Policies
The administration has recently faced numerous lawsuits alleging APA violations. Several medical groups, including the American Academy of Pediatrics, filed a lawsuit against Kennedy for removing the COVID-19 vaccine from the immunization schedule for children and pregnant women.
The common thread in these legal concerns is whether proper processes were followed and evidence was considered. Many medical societies and public health groups have criticized Kennedy and the ACIP for recent changes to the vaccination schedule, including the removal of the recommendation for routine newborn vaccination against hepatitis B. Scientists and public health advocates believe this decision will result in unnecessary suffering and death from a preventable disease.
However, if Kennedy follows a deliberative process, he could find other ways to alter the vaccine schedule. Even if the APA might imply that Kennedy needs to collaborate with the ACIP to change vaccine recommendations, this might not be a significant hurdle for him since he personally selected ACIP's members. Changing vaccine recommendations could be simpler than modifying federal regulations, a process that usually takes months and involves proposals and public comments.