Appeals judges question order that sidelined Kennedy's vaccine advisers
A federal appeals panel in Boston heard arguments Tuesday but did not rule on an order that keeps 13 of Health Secretary Robert F. Kennedy Jr.'s picks off the CDC's vaccine advisory panel. The panel has not met since March, and its Oct. 21-23 meeting will likely be canceled unless it is rebuilt first.
A federal appeals court in Boston took up the fight over the CDC's vaccine advisers on Tuesday but did not rule. The three judges of the 1st U.S. Circuit Court of Appeals pressed both sides on a March 16 order by U.S. District Judge Brian Murphy. That order blocked 13 people that Health Secretary Robert F. Kennedy Jr. named to the Advisory Committee on Immunization Practices, known as ACIP.
Several judges raised doubts about how the order was written. Chief Judge David Barron said it lacked an explanation for why blocking the appointees was legally justified. "It's hard to know precisely what harm this relief was designed to address," he said, Reuters reported. Barron also asked whether the court has the power to hear the appeal at this stage, Bloomberg Law reported.
The medical groups faced hard questions, too. Judge William Kayatta Jr. asked whether they would be harmed if the blocked members met tomorrow and adopted a recommendation the groups liked. Judge Joshua Dunlap pressed them to name the final agency action they are challenging.
Justice Department lawyer Matthew Zorn said the order leaves the panel unable to work, since any new members Kennedy picks could also be blocked. "We're asking the court to vacate the order on the appointments so that the secretary can reconstitute the committee and get it back to work," he said.
Andrew Pincus, who represents the American Academy of Pediatrics and other groups, said the order gives "important protection for America's public health." He said it still lets Kennedy rebalance the panel lawfully.
Why it matters to families: ACIP votes shape which shots the CDC recommends, and those advise doctors and insurers. The panel has not met since Murphy ruled and has canceled two meetings. Its Oct. 21-23 meeting would likely be canceled too unless the panel is rebuilt first, Reuters reported. The government says the order blocks new advice ahead of flu season.
The backstory: Kennedy removed all 17 independent experts on the panel last year and replaced them. Murphy found his picks did not meet a federal law requiring balanced panels. Murphy also blocked the CDC's Jan. 5 cut to the childhood vaccine schedule and set aside votes on hepatitis B shots for newborns and COVID-19 shots. The government chose not to appeal those parts.
What we know: The judges heard arguments and pressed both sides; no ruling came Tuesday.
What we don't: When the court will rule, and whether ACIP meets this month.
Where outlets agree Reuters and Bloomberg Law both report that Justice Department lawyer Matthew Zorn asked the court to lift the block so Kennedy can get the panel back to work.
Where they differ The government says the order leaves the panel unable to advise on flu shots, while the medical groups say it still lets Kennedy name a balanced panel lawfully.