There is an ongoing lawsuit between the American Academy of Pediatrics and Robert F Kennedy, Jr., head of the Department of Health and Human Services. The lead attorney of the lawsuit challenging the HHS vaccine policy changes is EWG co-Founder and President Ken Cook’s guest today.
Richard H. Hughes VI is a professor at George Washington University Law School as well as a partner at Epstein Becker Green. In addition to the American Academy of Pediatrics, Hughes’ law firm also represents the American College of Physicians and the American Public Health Association.
Hughes breaks down the legal framework behind the lawsuit against Kennedy, including the effort to dismantle and remake HHS’ immunization advisory committee, the broader implications for federal vaccine policy, and the growing erosion of public trust in pediatricians, vaccines, and public health institutions.
Disclaimer: This transcript was compiled using software and may include typographical errors.
Ken Cook: Hello there. Ken Cook here, and I'm having another episode. You know, ever since Robert F. Kennedy Jr. was confirmed as Secretary of Health and Human Services, and specifically during his confirmation process, I've been keeping a close eye on the dismantling of our vaccine policy infrastructure. I suspect a lot of you have been keeping an eye on it too.
It's one of the top priorities of the public health community now. And I've come to think of the approach that he's taken, uh, I've, I've coined a term for it, I call it vaccilation. This is why, uh, he's able to make the case on the one hand to his anti-vax followers that he's doing all he can to pursue their agenda, and that agenda is to prove various things about vaccines being harmful, even maybe more harmful than the diseases they prevent, that vaccines cause autism and so forth.
And he always does it in a kind of vacillating, vaccilating way where science is never settled, so we can always ask questions. A gold standard science is needed, and he's bringing that because you can't rely on existing authorities. And m-most importantly of all, he's not wanting to be positioned as either anti-vaccine or supporting vaccine.
He's in that vaccilating middle ground. And that has worked for him surprisingly well. It didn't work for Casey Means. Ultimately, she got caught up by not really saying what she thought when she was rejected by the Senate in the confirmation process for becoming surgeon general. But for Kennedy, it has mostly worked.
But there's one arena where it does not work, not the arena of hearings where Kennedy gives and takes with senators, not press statements, not podcasts, not Instagram posts. In all of those places, vaccilation has been a very smart strategy for him to remain elusive about where he is even as he pursues anti-vaccine measures.
But the one place where it doesn't work is in court, in legal proceedings before a judge. And today I'm joined by a lawyer who's doing something about vaccilation. Richard H. Hughes IV, who is a partner at Epstein Becker Green, a health law professor at the George Washington University Law School. And the lead counsel in American Academy of Pediatrics versus Robert F. Kennedy Jr. This was a landmark lawsuit challenging the vaccine policy changes Kennedy has implemented at HHS.
And in that setting, there is no wiggle room afforded for vacillating. You have to follow the law. Now, Richard's clients have included some of the most respected medical organizations in the country: the American Academy of Pediatrics, the American College of Physicians, the American Public Health Association, the Infectious Disease Society of America, among others.
And in March, a federal judge looked at all this vacillating, and specifically the steps Kennedy had taken under the cover of vacillating, and handed these organizations a very significant early victory, ruling that HHS had acted arbitrarily, ignored established law, and failed to follow basic administrative process.
But the fight is far from over. Richard is one of the nation's leading experts in vaccine law, and he has spent his career building the very public health infrastructure that's now under attack. I'm grateful that he's here because he, like EWG, follows science, and his objective is very clear: to protect the health of America's children and their future.
Professor Hughes, thank you so much for being here. The stakes could not be higher. And knock on wood, at least from my perspective, and I'm sure yours. So far it looks like it's gone pretty well, but we've got quite a ways to go, no question about that. I just wanted to ask, how did you, as you were starting your career, what brought you, Richard, into the health arena, and specifically this subset of health pertaining to vaccines? If you don't mind. I'm just curious to know.
Richard Hughes: I don't mind. Yeah, no, Ken, I appreciate that question. It actually goes, uh... and, and thank you for having me. It goes so far back, long before I was a lawyer. I was a very young political appointee in my home state of Arkansas. So I was 22 years old, and I was appointed to the Arkansas State Board of Health, and I didn't know anything about public health.
I was incredibly unqualified. It was an undeserved privilege to get that appointment. And right after I was appointed, I survived a brain tumor.
Ken Cook: Oh my goodness.
Richard Hughes: Yeah. I was misdiagnosed with glioblastoma. It was basically a death sentence, and got a second opinion and found out that I was gonna live, and got involved in cancer issues.
And I said, "You know, I'm in this position, and I can do something, you know, to, to improve the health of Arkansans." I felt compelled to do that. And I learned about the HPV vaccine. So a colleague came to me one day and said, "There's this vaccine to prevent cervical cancer." And I didn't know anything about it.
But as I, as I dug into it, as I learned more about it, I said, "You know, we really need to talk about, uh, this vaccine, and we really need to make this vaccine accessible." At the time, this was before the Affordable Care Act, we had a lot of access issues in our state, and I knew that if we were gonna reach the most rural parts of the state, that we should consider requiring the vaccine.
That was a really unpopular opinion to have. It got me kicked out of party politics. It ended my political ambitions completely, and so I got my master's in public health, I moved to DC and said I'm gonna work in vaccine policy for the rest of my career. I went back to law school, and, um, you know, added a lot more tools to my toolbox.
Ken Cook: Wow, I, I had no idea there were so many layers to that, to your history, and, uh, just as a editorial note to start off with, you know, Environmental Working Group has, you know, we, we generally speaking, have, have always supported vaccine policy, the conventional policy that is now at least temporarily back in place, and the, the CDC's positions on all, all of those things.
We did raise questions about thimerosal back in the day, but those were resolved. But generally speaking on vaccine policy, my overall feeling is the environmental health community looked the other way on the vaccine debate, which was probably not helpful. I think we now find ourselves in a s- a situation where, uh, there is such a threat to that frontline defense, and so much energy around undoing the reputation of the CDC and of science and of practicing physicians.
I, I read some of the things people say about pediatricians, and I just... I wonder what, what pediatricians are they talking about? Uh, everyone I've ever met, and I've met, hundreds of them, because we work on children's environmental health all the time, and m- from my own experience having a son, I don't get it.
But anyway, I just wanted to, I wanted to put that out there... because a big part of this is the, the kind of atmospherics that drove you away from the job in Arkansas, right? I mean, you must feel that... in your current role as well, right?
Richard Hughes: I absolutely do. I absolutely do. And it was really hard to watch the distortion around vaccine science, and a lot of that was wrapped up in religion back in Arkansas, right?
And... you know, talking about abstinence and sex and, and that was unfortunate, but I feel like, you know, we're up against a lot of the same issues, a willingness to spread misinformation and disinformation so easily, a public that maybe at first glance sometimes, you know, you might see something, uh, that looks like a potential correlative relationship, and you might have real questions.
And I do think that we should be answering those questions and helping- Yeah ... people understand the science, right? But... it's really hard to, you know, sometimes get people off of these beliefs, these misguided beliefs, when you have somebody like Robert F. Kennedy Jr. with the bully pulpit now, right, spreading all this misinformation.
Ken Cook: Yeah, no, and, and of course there's conspiracy-minded, uh, approaches to these issues. It's very convenient and very hard to overcome. It's, uh... a great, uh, retreat from, from critical thinking.
Richard Hughes: Yes, it is.
Ken Cook: Right? And that- that's, that's done a lot of harm. I found myself, when I read the judge's, uh, decision, uh, in March, I was fortified by that. Uh, not... not just because of the way the decision came down, but the learned way in which he argued it.
And I just want, I just wanna say, uh, just from the beginning of his order, uh, he, he writes that, "For our public health, Congress and the executive have built over decades an apparatus that marries the rigors of science with the execution and force of the United States government. One extraordinary product of that apparatus has been the eradication and reduction of certain communicable diseases through the development and use of vaccines."
And right there, he's drawing a distinction in his position, his conclusions, from Kennedy's, which... increasingly is to argue that these vaccines didn't play any role. And so, uh, the, the whole presence of the government in this sphere is questionable because, you know, better nutrition and sanitation and other measures… really, that's what caused polio and mumps and other diseases to be controlled. Patently not the case, but I appreciated that he was standing upright then.
Richard Hughes: Yeah. Yeah, I did too. I love that decision. It reads beautifully. I love that on the first page, he intertwines science and law, and talks about... the importance of process to both.
This is the first case I've worked on as a litigator. I'm not a litigator. I didn't go to law school to sue anybody.
Ken Cook: Oh, is that right?
Richard Hughes: It is. It is.
Ken Cook: Oh my goodness.
Richard Hughes: And sitting in the courtroom, you know, sitting in the courtroom as a vaccine law expert at the counsel table and, and really just hoping that we are doing the best possible job to help the judge get the facts right, to get the law right, to make the best, most informed decision, because we want the decision to stand.
He wants... to write an, an effective decision. He wants to get it right. He's not an ideologue. And, you know, the government over here is saying in the, in the courtroom that, you know, there's no binding, you know, guiding principles in the law that says the secretary has to do this or that, the secretary can just basically do whatever he wants, and that, you know, reasonable minds can differ on how to best prevent infectious disease, and that we're all here to protect public health.
It was really disturbing to hear some of those arguments and the way they framed it. And, and then it was so encouraging to hear the judge come back to them and, and, and to recite back to them law, and to see how he followed the apparatus that, that he described. And it has... I mean, I have to say, there was a time when all we had were vaccines, and we didn't put policy or the force of law behind it.
Sometimes then we would do that in an outbreak context. So late, you know, late 1800s, smallpox outbreaks, we're saying, "You have to go get vaccinated because we're trying to prevent it." But one of the greatest innovations in the law and in vaccine law and policy in the, in the 20th century was we realized, if we can just get everybody vaccinated early, we can actually stop the transmission of these diseases.
We can lower the overall incidence of disease, the overall morbidity and mortality, and we started to do that in a really systematic way with vaccine policy. And as the judge recited, we have these federal laws. The federal government is not making people get vaccines, that's the role of the states.
But there is a robust apparatus in federal law that says, you know, Congress has thought about this, and they've enacted a variety of laws where we essentially presuppose that vaccination is the best way to control vaccine preventable diseases in this country. And that's what, simply what we're trying to do.
Ken Cook: Yeah. I was astonished at some of, uh, when the judge asked certain questions about, well, how, how far could Secretary Kennedy go?
You know, how much power... does he have? Could he actually say, um, "Getting some of these diseases is okay, or is good, or we would, we would like to pursue policies that would encourage them to get these?" Which, which of course, Aaron Siri and others, Dale Bigtree have openly said they think that should be the case.
Yeah. I was astonished. What, what was it like in the courtroom when you were hearing that?
Richard Hughes: Well, what's really hard is when you're a... you know, I, I, I speak a lot on these issues publicly, right? I'm, I'm a policy-oriented lawyer, and I have opinions. And to sit in the courtroom at the counsel table and to really, you have to maintain decorum in the courtroom.
It's not a raucous place, right? You know? And, uh, you know, and so to have to sit and listen and keep a straight face to those kinds of arguments was really, really, really hard for me. And the number of things I w- I w- you know, that you wish you could say, right? And so for the judge to point that out, uh, and to use that example, and I think it's one of the great things that, that judges sometimes do, is to present absurd hypotheticals, and it was a really really, really effective one.
And so I think what gets overlooked is they frame up natural infection as just fine. You know? That, that natural infection is just fine. And what in reality is if you go to old graveyards and you look at the number of infant graves that are there, and you can, these graveyards are all over our country, right?
In the early 20s, late 19th century, early 20th century, right? And then I always go back, I, I tell my team all the time about this letter to the editor that I read around 1994 or 1995 in The New York Times, where a mother wrote to The New York Times, and she said, "You know, I just learned about this new vaccine to prevent chickenpox, and I don't understand why I wasn't made aware of this five years ago when the vaccine first became available."
Because she said, "To my family, chickenpox is not a minor illness." Chickenpox had devastated her household. Her kids ended up with all sorts of infections that I didn't even realize that, you know, measles, chickenpox, these things can result in other infections, other morbidities.
Ken Cook: Very serious, yeah.
Richard Hughes: Right. Very serious. Very serious, and, and sometimes very deadly. And so, you know, vaccination is a way not just to prevent cases and to have fewer or hopefully zero cases. You know, we have a sophisticated tool. People don't have to die from these diseases. They don't have to deal with the long-term effects of these diseases.
Ken Cook: And, you know, the, the consequence of not intervening through vaccines on the, the cost of the healthcare system, and I've even said to, to my colleagues in the environmental community, we all noticed what happened during COVID, where all the resources rushed from the CDC and elsewhere, rushed straight to the concerns and the, the need to a- adapt to the COVID conditions.
You lose a lot of ability to do other health-related interventions, including environmental health, and talking about pollution or, uh, contamination of food or what have you.
Richard Hughes: Yes. Yeah.
Ken Cook: That, that contracts in the face of emergencies, where it has a huge impact. I noticed, and I, I just, I wanna mention the other plaintiffs, because it's an impressive list. It's the American Academy of Pediatrics, the lead plaintiff, but it's also the American College of Physicians, the APHA, the American Public Health Association. We also have a longstanding association with them. Infectious Diseases Society of America, Society for Maternal-Fetal Medicine, the Massachusetts Public Health Alliance, and I'm sure there are others that I'm not naming.
It's impressive to me, and I've, I've said this to several, uh, people, you know, when you look at the way these, uh, interests are arrayed on the two sides of this issue, it's kind of shocking to think that there is virtually no reputable independent science association or organization that, that stands with Kennedy.
Now, I think everyone agrees, yes, there can be vaccine injuries, and yes, we should address those, and we should, we should be concerned about those, and, uh, unfortunately sometimes they're, fortunately very rarely, but sometimes they are serious.
Richard Hughes: Yes. Yeah.
Ken Cook: No question about that. But on the basic question of whether we need vaccines, whether the, where any kind of mandate, again, at the state level, which is where these are proffered, it really is shocking that we're at the state of the debate that we're at. And even to the point where I noticed that quite a bit of time was spent by the government to try and make the case that the plaintiffs you represent shouldn't have had standing.
Richard Hughes: Right, right, right, right, right, right.
Ken Cook: Can you talk a little bit about that? I just- I mean, why not try it? Why not try it?
Richard Hughes: I sure can. And I... look, I'm very honest. I, I, I'm very honest and open about how we got to this point. We knew when Robert F. Kennedy Jr. came into office that he was going to do a lot of these things. I knew he was gonna do a lot of these things because I've helped build up the system that he's trying to tear down.
And so I, I looked around me and I said to my team, I said, "You know, he's going to do these things, and we have to be prepared. We have to watch everything he does. We have to watch when he takes these actions, and we're gonna need to be prepared to put up a legal fight."
Okay, so we have a policy disagreement. Absolutely, we do. The government wants to suggest that that's all we have, and that policy disputes don't belong in court, and they belong in the legislature and, and, and all that. But there are real harms here. And I would not, I would not have pursued this and put my name and, and, and resources and effort behind this if I thought it was a mere policy disagreement.
I knew that this was going to harm, uh, not only public health and families, but that it was actually going to harm the organizations that we're representing. And they do have standing. And so if you look at the pediatricians of this country represented by AAP, not only has AAP itself as an organization had to divert all of its time and resources to deal with, with this, but the providers on the front lines, and they'll, they'll say, "Oh, you know, it's just… you know, they make a lot of money."
You know, it is so not true. Being a pediatrician is not some sort of gangbusters, you know, business to be in. It's very, uh, costly to maintain an inventory of vaccines in those practices, and the reimbursement, you know, it's not usually profitable. And so this is causing them, you know, the, the frustrating experience of having to address misinformation and disinformation that their patients are hearing, coming in confused, and to practice effective medicine.
That's been frustrated. And the same thing, uh, American Public Health Association, and, and Dr. Benjamin doesn't mind me telling folks that when I called him and I said, "You know, would you be a part of this?" He said, "We're in." It was a no-brainer. Because he and I knew, we instinctively knew, that this was going to impact health departments across the country.
There are clinical practitioners that are members of the American Public Health Association. They represent this vast constituency across the country of public health workers, clinical workers, all kinds of folks, and, um, we knew that the harm was going to just, just permeate the public health system. And so we demonstrated those harms.
We're proud to represent these plaintiffs and we take very seriously the work of showing the court that they have been harmed, and we did that. We went in in December. The government tried to get our case dismissed on standing. And we went in, and we, you know, demonstrated to the court — they're experiencing real harms.
And if anybody's interested, go read the declarations that have been filed by the dozens of, of physicians and others, uh, in the case.
Ken Cook: Yeah, I encourage people, you know, to read the whole record so far. Yeah, yeah. Every aspect of it is to me informative, up to and including the, the judge's order at, in mid-March.
You know, Kennedy's often claims that pediatricians are in the pocket of big pharma, as you suggested, and it's very profitable to, uh, give kids shots, and they make a lot of money doing it. Sometimes I've, I've seen it suggested that this is the main way they make money is by vaccines. I haven't seen any evidence of that.
But what interests me is that i- in order for his, uh, approach to work, he has to then say, "We want you to have a conversation with your doctor before you decide for yourself about getting vaccinated." So where do all the good doctors go, and where, where do all the bad doctors go that you can just... and it turns out that if it's your pediatrician, that's a good doctor.
But when they gather together under The Academy of Pediatrics or they, when they assemble, that's when they're evil. Makes no sense.
Richard Hughes: No, it doesn't. It doesn't. It doesn't. And there are fringe, you know, very, very, very, very fringe physicians out there that are a part of his movement, right? That, and I'm, I'm sure that's who they would rather you go to and talk to. But they want to frame this, because these are political issues, right?
And they, they know he has a, Robert F. Kennedy Jr. has a base and a constituency that he is pandering to. And when they talk about medical freedom and choice and forced medical treatment, this is all so deceptive.
And so if you go back, the old case Jacobson v. Massachusetts, 1905, the Supreme Court, where the Supreme Court said states can require vaccination. There's a lot of really great discussion in that case. It's a dense read, and I have my class read it every year. But it talks about sorting junk science from evidence, you know, in early 20th century terms.
And by the end of the decision, it talks about the importance that we not make people who shouldn't be vaccinated get vaccinated. It acknowledges that. That is in the opinion. So inherent, when I think about vaccine policy, and I think about requiring vaccines so that people can be healthy and we save lives, what I know as a part of that equation is that it's always going to be a conversation between the pediatrician and the parent about the child's health, and they should sit down, and they should say, you know, "Which vaccines do you need to get? Well, we have this schedule, and it's standardized, and it's based on evidence, and we should follow it."
But if this child's contraindicated, if they're at risk of some sort of harm that is ascertainable, you know, then we shouldn't vaccinate. But those cases are rare. Those cases are rare, and we should acknowledge when there are rare vaccine injuries, we need to compensate those.
We need to do it quickly and adequately. So that we can continue to pursue the public health goal. I ask my class every year, would you rather have 100 cases of polio or would you rather have, you know, two injuries? And, you know, we have to make some trade-offs. And there's a, there's a social compact here that they misconstrue, that they absolutely misconstrue.
Ken Cook: Yeah. No, I think that's right, and it's hard to think of a, of a medicine or a drug that doesn't have those kinds of potential complications for some subset of the population, these side effects. Um, and, um, I mean, even cancer drugs sometimes cause cancer, so it is a conversation with physicians, and to me, what, what I worry about is th- this debate is missing how to actually make parents better consumers of information and make them more able to have those conversations. You don't have a lot of time often in those offices. But how to, how to make the most of those conversations because that's certainly gonna be in the interest of the physician treating you as well.
Richard Hughes: That's right.
Ken Cook: So one of the things that I had all kinds of thoughts about which direction Kennedy might take vaccine policy.
I did not foresee him going immediately in the face of what he promised Congress and firing every member of the committee and replacing them summarily with his own people. B- but it goes to a, a question that I've, I've had, which is I thought in this second Trump administration they were being more careful than in the first Trump administration, certainly in environmental, uh, decision-making, where they, they made it easy to lose in court, and they mostly did lose to my colleagues in the environmental community who practice public interest law, so law that sues the government.
But then I, as I read this judge's decision and saw what, what was piling up, I was shocked at the fumbles, the mistakes that HHS made with the Administrative Procedure Act, that you made great use of, um, of that law to point out to the judge, and he ruled, I think in every instance, on your side. That's there for a purpose, too, in addition to vaccine law, which is, you know, it's to make sure that the government proceeds in an orderly manner.
It's not, uh, arbitrary. It's not capricious. And the thing that puzzled me the most, Richard, was, you know, if you're an environmental lawyer, the Administrative Procedure Act is central to how you think about challenging the government, maybe more than almost any other area.
Richard Hughes: Yes. Yes.
Ken Cook: Of public interest law, right? Because it's, it's, it's the clockworks of EPA and Interior Department and Fish and Wildlife Service.
Richard Hughes: Yes.
Ken Cook: And when they get a procedure wrong, when they're arbitrary, when they're capricious, when they side, uh, make a decision, you know, in favor of, of industry that is ill-considered, that's where the environmental community, and Kennedy in the past, has grabbed on.
I was surprised that there were so many mistakes that they're, uh, in the rush to get these decisions made, which to me tells me also that they're, they're not likely to be lasting. But I'll go back to that. But just talk a little bit about the the Administrative Procedure Act and how you saw that play in this case.
Richard Hughes: Uh, you don't even need to take a, a law school administrative law class to see that. I mean, it is so just patently obvious. I said early on, I said, "Anything this man does is going to be arbitrary and capricious because- ... the science isn't there." The science doesn't support it.
They're not going to be able to point to anything legitimate and to say, "That's the basis for this decision." Now, what I didn't expect was the lack of process. You know, the explanation part of it, and these are all, I'm talking about sort of the recipe of, of what we expect government officials to follow, right?
Ken Cook: Yeah, yeah.
Richard Hughes: We expect them to take a hard look at evidence. We expect them to follow a process to explain why they did it. I knew that they wouldn't find the evidence. I did think that they would at least try to give the appearance that they were following a process and taking a hard look. The way they throw around the term, the, well, the terms gold standard science and transparency and everything, I, I think it's very misleading, and I didn't expect a lot of explanation or transparency.
But I really did think that they would try to follow some process.
Ken Cook: So did I.
Richard Hughes: You know, right? And so for a long time environmental lawyer, who, as you said, you know, should have a deep understanding of the importance of the APA and procedure, to just go out one day and film a video, and in 58 seconds make statements like, "The previous administration's recommendations were based on nothing," right?
And to say that, "I, standing here, you know, a lawyer surrounded by two other political appointees, I'm just gonna tell you that I, I'm delighted, in fact, I'm gonna use the word delighted, to tell you that you no longer need to get the COVID vaccine."
I mean, it just reeked, it reeked of lack of process, of unseriousness. And, um, same thing with the January 5th schedule changes. And as President Trump is saying, "Well, let's look at the Danish schedule," I think there was actual reporting that, that HHS knew that what they were discussing would likely violate or potentially violate the APA. So they're, they know this, and I think that this is just evidence of Robert F. Kennedy Jr. and the forces around him will stop at nothing, you know, to get their agenda through.
Ken Cook: Yeah, I mean, w- what I've been saying to my friends on the other side of this issue is, "If you really did believe that you wanted to tear down vaccine policy in this country, and do it on the basis of transparency and gold standard science, you've been failed by Kennedy."
The pace at which he's operated. The fact that, I mean, here he has, he has control over the, all these funds. He could launch- the study that he says we've long not done to link vaccine harm to, you know, autism or whatever it might be. I mean, th- you've got all the money now. You could, you could control it.
Where are the studies? Where is the evidence that you're- Yeah ... putting forward or, or what basis? And then you have a, a press conference in the, in the White House a- about Tylenol, and the promise that by September of 2025 we'll know what causes autism. So obviously these aren't serious people. They don't show their work.
Anti-vax interests, anti-vax proponents, ought to begin to understand by now that these changes are not going to endure. They're not gonna stand up scientifically, and as we f- see in the case that you've been arguing, it's not standing up in the law either.
Richard Hughes: No.
Ken Cook: And the political support seems to be eroding.
At least Republicans wanna talk about healthy eating, not vaccine policy anymore. It's a real shortcoming of Kennedy's approach, but I think it's what he's left with because the evidence really isn't there.
Richard Hughes: Yeah. You know, it's not, and ultimately we're gonna prevail. We have to litigate this thing, and I, it's, it's unfortunate, but we, it, I, I knew that if he did these things and if we were going to stop him and show to be true what you just said, is that they're not showing their work, this is all false, and we need to stop it, and we need to go back to... and it's not to say that our system before couldn't use improvements. Absolutely it needs improvements.
But, you know, if we were ever going to stop this and restore sanity, we were going to have to sue, and we still have the work to do to do, we're not done yet, right? But ultimately, yes, it won't endure. It won't endure because we're stopping it.
Ken Cook: Yeah. Now let me just ask you. Kennedy in, in recent weeks, and I, I, I don't know exactly where this stands now, so help me out here — he has proposed a restructuring of the, uh, advisory committee on immunization practice, the ACIP committee at the CDC, to restructure it to include the kinds of personnel that he thinks will represent vaccine-injured people.
I was surprised the judge actually went as far as he went in go- kind of going through the list of people appointed to this committee and basically- Yeah ... saying, "You know, we, this committee can't continue." It doesn't meet the, the, the test of the law for expertise. So how do you see this latest move by Kennedy to reorient the committee and give it a, a different charter?
Richard Hughes: Yeah. Yeah. So they are trying to circumvent the judge's ruling.
Ken Cook: Patently.
Richard Hughes: Patently. I hope the White House is watching. I hope that White House Chief of Staff Susie Wiles is listening to this podcast, and I assume that she wanted him to cool it on vaccines, because that's not a popular issue. Going into the midterms, I don't think they want him to continue this.
Now, what they've done is they've gotten really creative. They said, "Oh, the charter's going to expire on April 1st." And so they got together, and Aaron Siri said, "We're gonna put in a petition, and we're gonna just change the charter." So Andel Bigtree, uh, has been on his podcast, and there was a Politico story that ran last week where he said, "Oh, you know, Kennedy basically just has to change the T's he's crossing and the I's that he's dotting."
Wow. You talk about transparency. I mean, they're being so transparent about their nefarious- Finally, yes. Finally.
Ken Cook: Right? Isn't it funny? So- finally some useful transparency,
Richard Hughes: Yeah ... ri- right. Very useful, because it's like, okay, you broke the rules, and you got your hand slapped, and so now you're just going to change the rules?
Well, I'm sorry, you have to follow some rules to change the rules. And it goes back actually to where we started in this conversation, too, is that the law presupposes we want to use vaccines, right, to control vaccine preventable disease. There is that thoughtful apparatus that's been set up.
They are flying, they continue to fly in the face of that. And so, you know, we'll see what he does. We need to see how he would execute on these charter changes. But it's, it's just egregious, and I hope it gets the attention that it deserves.
Ken Cook: Yeah, I do, too. Well, we'll certainly try and help as much as we can to shine- Thank you a light on that, because, you know, there's, there's never been a more opaque administration when it comes to decision-making.
And more arbitrary, almost clownishly so, and oftentimes to deadly effect. Lots of bad decisions on environmental policy that are causing harm. And we see from the shifting attitudes, the new poll that came out from Politico, that it seems like more and more Americans are, Republicans in particular, are vaccine skeptical and might decide not to have their kids vaccinated because of this ambient debate or discussion.
Debate's hard to say. Uh, it d- doesn't really suit it. What are the next steps that will unfold? Um, they haven't formally appealed yet, have they?
Richard Hughes: They haven't, and they don't have a window to appeal. There have been statements made out of HHS that they have, you know, 60 days following the ruling. This was an interlocutory decision.
They have 10 days. They would have had to have a question of law certified to be able to take it up to the First Circuit on appeal. They have missed their window. And so if they want to try to appeal this late, we would oppose that. And so where we are right now is in a relatively boring place, where we essentially are working with the government to get the administrative record and, you know, going back to the APA, because this is an APA case, we are entitled to see the record, and there are different records for each of the decisions, right?
And so we're, it's the ver- again, the very boring part of litigation, of trying to get the documents. Now, are they going to give us all of the documents we want? Are we gonna see the emails and the text messages? You know, we're looking.
Ken Cook: I would love to. I would love to.
Richard Hughes: I would, I would as well. I would as well. I would as well. So, you know, once we have that record, and once it's completed, we'll be pursuing a final judgment and to get a final decision on the merits. And, um- presumably that could be appealed in the future. I would assume they want that to happen after the midterms, because of the way we've talked about this.
But we're doing the work of getting to that final decision.
Ken Cook: Well, I wanna thank you for that work, and thank you for your time, Richard. Thank you. I've read deeply into the court record here. I, again, I encourage everyone to do the same, and I know your students will be reading through it.
Richard Hughes: Yes, they have. They have already been... yes.
Ken Cook: I, I'm sure, I'm sure. This is a pretty exciting time to be reading through something as a curriculum that's so present in the world, and that their professor is so heavily involved in. And I, I'm not happy that you had to leave your political career in, in Arkansas, but I'm, but I'm grateful in a way that where you ended up is, uh, making this case.
Richard Hudges: Me too
Ken Cook: These organizations, again, they're not perfect. The law is not perfect. The science is not perfect. But in the scheme of things, we cannot afford this area of law and policy and science to be degraded in the way it is, and that's my, one of my greatest regrets. People wor- worry about authoritarianism, I get that.
But I think before, well before we get to that, it's the corrosion in understanding what authority really means. The authority of, of knowledge and expertise as well as the, the authority of law. To me, that's the greater, that's the greater threat right now. Because that sits in a parent's head.
Richard Hughes: Yeah.
Ken Cook: Who do I trust?
Richard Hughes: I agree.
Ken Cook: If it's a pediatrician of the sort that Kennedy caricatures as in the pocket of big pharma, why would you trust them? On the other hand, you have a kid that, um, really will be vulnerable. Look at what's happened with, uh, all these infectious diseases just in the past year and a half. It's very worrisome.
Richard Hughes: No, it absolutely is, and we have so much work to do to actually reestablish trust. He talks about reestablishing trust. I'm not saying that we were ever perfect at communicating about vaccines. I think there are so many things that we could do better when it comes to talking with parents, right? You know?
Ken Cook: I agree. The fact that they feel ghosted is really upsetting to me. It is. People say that to me on, you know, on direct messaging and on, in LinkedIn and other ways I communicate, that I even questioned Kennedy, and we came out against his, his confirmation. And, uh, George Benjamin, when I called him, he said, "I'm in," when we were live streaming the con- confirmation hearings.
It's, it's like a no-brainer. And there's no one in the nonprofit environmental community who's standing up with Kennedy, which is also noteworthy. I say that to a lot of my friends who are, you know, MAHA fans and adherents that take note of that. It's kind of noteworthy that you don't have anyone in the major environmental groups that he worked with-
Richard Hughes: No ...
Ken Cook: Uh, who's willing to stand up for him. Quite the contrary, so.
Richard Hughes: That's right. That's right.
Ken Cook: Anyway. Well, thank you so much. I really-
Richard Hughes: Thank you, Ken
Ken Cook: ... appreciate it. As this evolves, I hope I can get you back on if there's-
Richard Hughes: Please, anytime
Ken Cook: ...important developments that
Richard Hughes: Please
Ken Cook: Really great. Thanks so much, counselor. Thank you so much.
Richard Hughes: Thank you, Ken.
Ken Cook: Thank you to Professor Richard Hughes for joining me today, and thank you out there for listening. If you'd like to learn more, be sure to check out our show notes for additional links so you can take a deeper dive into today's discussion.
Make sure to follow our show on Instagram, @KenCooksPodcast, and if you're interested in learning more about EWG, head on over to ewg.org or check out the EWG Instagram account, @EnvironmentalWorkingGroup. Now, if this episode resonated with you or you think someone you know would benefit from it, send it along.
The best way to make positive change is to start as a community with your community. Today's episode was produced by the extraordinary Beth Rowe and Mary Kelly, who wrote that last sentence. Our show's theme music is by Moby. Thank you, Moby, and thanks again to all of you for listening.
