Breaking: CHD Asks Supreme Court to Hear Case Alleging FDA Misused Emergency Power to Authorize COVID Shots for Children

Children’s Health Defense and five parents in January 2022 sued the FDA intending to hold the agency “accountable for its arbitrary and capricious authorization of a harmful drug that has and continues to injure children.”

Children’s Health Defense (CHD) attorneys asked the U.S. Supreme Court to hear CHD’s case against the U.S. Food and Drug Administration (FDA) for granting emergency use authorization of COVID-19 vaccines for children and babies.

CHD’s lawsuit, filed Jan. 24, 2022, alleges the FDA misused the emergency power to push dangerous biologics on minors.

Robert Barnes, CHD’s attorney of record in the case, filed the petition for a writ of certiorari asking the Supreme Court to review district and appeals courts’ decisions that have prevented the lawsuit from moving forward.

CHD CEO Mary Holland told The Defender:

“CHD’s petition to the U.S. Supreme Court raises a critical question: Who can sue the FDA for malfeasance? So far in this case, the district and appeals courts have said that parents of vulnerable children cannot sue the FDA for its patent misinformation.”

In other words, Barnes said, “When the FDA lies to kids, who can hold them accountable and stop the lies?”

In this situation, the FDA “stooped so low as to use Sesame Street and Elmo to lie to kids about the safety, efficacy and necessity of the COVID-19 vaccines,” Barnes told the Defender.

Someone — or some organization — must be able to hold the FDA accountable, Barnes said. “The FDA is not above the law. That is why CHD is asking the Supreme Court to answer the question.”

Courts split on who can sue FDA

In January, the U.S. Court of Appeals for the 5th Circuit in New Orleans upheld a lower court’s dismissal of CHD’s lawsuit on the basis that CHD and the five parents in the case lacked “standing” to sue the FDA — meaning the courts ruled the plaintiffs didn’t have the legal right to bring the suit.

CHD General Counsel Kim Mack Rosenberg, who called CHD’s petition “critically important,” said, “Standing is a threshold issue that courts must determine to move forward.”

The issue of standing has been one of the most “challenging problems” during the COVID-19 pandemic, Holland said. “Federal circuits have split on what level of harm must be present for individuals and organizations to sue.”

“Our case,” Mack Rosenberg said, “presents an excellent opportunity for the Supreme Court to tackle many of the unresolved or conflicting issues between the various federal circuit courts concerning standing, particularly given that Children’s Health Defense — an organization — is a plaintiff along with other individuals.”

Barnes agreed. He told the Defender that CHD is the “most logical party” to seek remedy representing the most vulnerable children in the country.

Lawsuit seeks to hold FDA accountable

As The Defender previously reported, CHD and five parents sued the FDA on Jan. 24, 2022, alleging the agency violated the Administrative Procedure Act (APA) when it authorized COVID-19 shots for children.

The lawsuit is intended to “hold the FDA accountable for its arbitrary and capricious authorization of a harmful drug that has and continues to injure children.” The plaintiffs filed an amended complainton July 1, 2022.

The parents alleged risks to their children from COVID-19 vaccines, including severe adverse reactions and “the unrelenting and looming threat of being pushed out of society” by “the culture of mass vaccination and medical mandates.”

CHD and the parents alleged the FDA “abused its emergency powers, eliminated the notice-and-comment process, ignored citizen petitions, abandoned traditional safety mechanisms for assessing drugs injected into interstate commerce and the arms of American children, ignored express legislative limits on their actions.”

According to the complaint, the FDA misused its “emergency power to push dangerous biologics on minors, mislabel and misbrand them to the public, with the express knowledge that their mislabeling would lead to them being coerced on children and infants as young as 6 months old.”

The U.S. District Court for the Western District of Texas dismissed the lawsuit on Nov. 18, 2022, “on the grounds the Amended Complaint failed to sufficiently allege that any of the Appellants had standing to sue FDA.”

There must be ‘equal justice under law’

The Supreme Court receives roughly 7,000 to 8,000 petitions for a writ of certiorari and grants only about 80 each year, so the odds that the court will hear CHD’s case are slim, Holland said.

“But this one merits review, not only because it’s a critical constitutional issue, but because circuit courts have split on the issue.”

This split means the courts are not uniformly applying the law — which is a problem, according to Holland.

On the front of the Supreme Court edifice is the phrase “Equal Justice Under Law,” she said. “There can be no equal justice if courts are applying the law in radically different ways. I hope the Supreme Court will hear this case.”

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