Public health has had its day in court lately. And another day. And another day.
Over the course of the pandemic, lawsuits came from every direction, questioning public health policies and hospitalsā authority. Petitioners argued for care to be provided in a different way, they questioned mandates on mask and vaccine use, and they attacked restrictions on gatherings.
Historically, āthereās been nothing but a cascade of supportive deference to public health,ā said Lawrence Gostin, a professor specializing in public health law at Georgetown University. That changed during the pandemic. āItās the opposite. Itās been a torrent.ā
Even as covid-19 wanes, lawyers representing the health care sector predict their days in court arenāt about to end soon. A group of litigators and media companies, among others, are eyeing policy changes and even some profits from yet more lawsuits.
Because such groups can reach millions of people, public health advocates like Gostin and Brian Castrucci, president of the de Beaumont Foundation, a public health nonprofit, suggest that the result, beyond creating legal setbacks, could spread more misinformation about their work. The imprimatur of a lawsuit, they think, can help spread vaccine skepticism or other anti-public health beliefs, if only through news coverage. āYou know, lawsuits have a galvanizing effect,ā Gostin said. āThey tend to shape public opinion.ā
Lawyers are organizing to promote their theories. Late in March, a group of them gathered in Atlanta for a debut to swap tips on how to build such cases. āAttention, Atlanta lawyers!ā proclaimed an . āAre you ready to be a part of the fastest-growing field of litigation?ā
The conference was sponsored in part by the , which was established on vaccine-skeptical views. The gathering promised to share legal strategies for suing federal and state public health agencies over covid policies, as well as hospitals and pharmaceutical firms for alleged malfeasance.
Itās the sort of thing that has people like Gostin paying attention. āItās very worrisome,ā he said. Even if lawsuits donāt succeed, it could make hospitals and public health officials gun-shy, he said. At the height of the pandemic, lawyers were successfully forcing hospitals to administer ivermectin to treat covid ā despite many gold-standard, randomized, controlled trials demonstrating it wasnāt particularly useful.
The conference was a good way to meet like-minded advocates, explained Steven Warshawsky, a New York lawyer who attended. āThereās networking and an effort to create a legal community thatās knowledgeable,ā he said. And colleagues can also āspread the word about different legal angles.ā Indeed, panels covered subjects ranging from licensure to hospital negligence, and allegations of vaccine injuries.
The conference was organized by Steve Kirsch, a wealthy San Francisco Bay Area tech executive, who describes himself as a ātruth tellerā regarding covid vaccines and policies. He has persistently raised questions about masks and vaccines and other standard public health measures. The conference, he said, is meant to help encourage lawyers to further that stance. He said he hopes that āthe lawyers are successful in getting large settlementsā because āit will incentivize other lawyersā to bring their own suits against pharmaceutical firms and government agencies alike.
Heās been about situations in which he, an unmasked person, encountered masked counterparts. For example, during a flight, to an airplane seatmate to remove her mask. (He said he did it to test the level ā and potential hypocrisy ā of peopleās attachment to masks.)
Kirschās legal entrepreneurism is on full display in : Individuals seeking his comments can check boxes if they are lawyers who would represent him in various lawsuits against the federal government on vaccine-related issues.
Visitors can also book his time in 15-minute increments, at $500 a pop; subscriptions to his newsletter ā of which he claims ātens of thousandsā ā are $50 a year. (He says he donates the subscription income.)
The lawyersā conference attracted speakers well known in the covid litigation world. One, Robert Malone, did early work on messenger RNA and has now grown skeptical over alleged defects in covid vaccines. (Theyāve been approved by the FDA after large trials.) Malone and other plaintiffs threatened Twitter last year with a lawsuit seeking to reverse a ban on spreading misinformation. After taking a media tour, heās now back on the social media network.
For public health officials, itās not merely the potential outcome of the courtsā rulings but also the publicizing of the theories that poses a risk.
āEven one win, despite countless losses, for some will provide supposed evidence and vindication that questions need to be answered, liability needs to be assigned, or a wrong needs to be righted,ā Castrucci told Ńī¹óåś“«Ć½Ņīl Health News. āBut the decision of any one trial canāt and shouldnāt supplant the findings of clinical trials enrolling nearly 70,000 Americans.ā
āI think this is part of a grander destabilization of public health, through the judicial system,ā Castrucci said.
Readers wanting to connect favored theories to courtroom drama through the media have no lack of opportunity. Take The Daily Wire, an online publication featuring conservative political commentator Ben Shapiro. The company was a plaintiff in one federal lawsuit, part of a barrage of successful litigation, challenging the Occupational Safety and Health Administrationās policy of giving large businesses an option of either requiring their employees to get vaccinated or test weekly for covid. The regulation was stymied by the Supreme Court and later withdrawn by the agency.
The lawsuit served a second purpose. It provided a continual, evolving theme for Facebook ads promoting the outletās fight ā and asking viewers to subscribe, sign petitions, or purchase merchandise. In a November 2021 ad, Shapiro asserted there was āno bigger fanā of vaccines than he. But any pro-vaccine claim was not a centerpiece of future ads, which inveighed against mandates, vaccine passports, and the like. The Daily Wire claimed in February 2022 that it was in annual revenue.
The publication made covid messaging, particularly around lawsuits or legal matters, a frequent theme of its advertising. One ad, for example, mentioned how police were enforcing vaccine passports in ācertain citiesā ā it didnāt specify which cities. But The Daily Wire published an article about police in Paris, not the United States. The media outlet didnāt respond to multiple requests for comment.
In all, Ńī¹óåś“«Ć½Ņīl Health News found the publication had at least 10 million ad impressions on Meta platforms ā Facebook and Instagram ā from October 2021 to February 2023 concerning lawsuits, mandates, lab leaks, and other covid-related topics.
Earlier, conservative media groups were happy to contribute by writing amicus briefs in support of certain cases. But thereās now plenty of right-wing voices trying to seize an audience, said A.J. Bauer, an assistant professor of journalism studying conservative media at the University of Alabama. āWeāre seeing an oversaturated media space, with a lot of competition,ā especially on the right, Bauer said. As such, he said, they need to stand out ā even if it means embracing āstunts,ā like participating directly in lawsuits.