American Academy of Pediatrics, et al. v. Robert Kennedy, Jr., et al.

Those of you who care about healthcare, vaccinations, the MAHA movement, what is happening in America today to the government and its actions know that last year the AAP (American Academy of Pediatrics) sued Robert Kennedy, Jr., for changing the government’s recommendations about vaccinations. That case has not yet been tried, but the result of the pre-trial maneuverings was the court order – last month — which temporarily prohibited Secretary Kennedy’s removal of recommending Covid vaccinations for healthy children and pregnant women and temporarily invalided his appointment of an entirely new Advisory Committee on Immunization Practices (ACIP), the committee that provides recommendations to the Centers for Disease Control and Prevention (CDC) on vaccinations and immunization schedules.

Because of the importance of the issues under examination, I thought it useful to analyze the Court’s Memorandum and Order, even though the trial has not yet begun, even though whatever the Court’s final decision, it will be appealed, and most likely the appellate court’s decision will itself be appealed to the Supreme Court. At this early stage of the process, the issues might be clearer and more understandable.

First a bit of setting. The case is being tried in the U.S. District Court of Massachusetts, part of the federal First Circuit. Judge Brian E. Murphy presides over this case.

The Complaint was brought by seven professional medical organizations and three unnamed individuals. The organizations are American Academy of Pediatrics (“AAP”), the American College of Physicians, Inc. (“ACP”), the American Public Health Association (“APHA”), the Infectious Diseases Society of America (“IDSA”), the Massachusetts Public Health Association d/b/a the Massachusetts Public Health Alliance (“MPHA”), the Society For Maternal-Fetal Medicine (“SMFM”), and the Massachusetts Chapter of the American Academy of Pediatrics (“MCAAP”).

The Defendants are the U.S. Department of Health and Human Services (“HHS”); the Secretary of HHS, Robert F. Kennedy, Jr. (“Secretary Kennedy”); the Centers for Disease Control and Prevention (the “CDC”); the Acting Director of the CDC, Jim O’Neill (“Director O’Neill”), and fifty unnamed individuals.

Involved in one way or another in this litigation are also numerous friends of the court (amici curiae) supporting both sides, also, a group of Massachusetts physicians (not parties to the litigation) writing directly to the court pleading for Secretary Kennedy, and another group of individuals supporting the Defendants who formally asked to be admitted to the litigation, whose entrance was argued (briefed), considered, and denied, but which, nonetheless, submitted a brief on the issue of the injunction and now has appealed the Court’s denial of entrance.

Even before the trial itself begins, the case has generated over 280 filings and orders, the complaint has been amended four times, the court has held two evidentiary hearings, 30 witness declarations have been filed, the participants have filed supplementary briefings on a related case, numerous friends of the court have filed briefs, the court has denied dismissal upon motion and briefing for dismissal (thus settling the issues of standing and mootness on which the motion for dismissal was based), and a court order has been appealed to a higher court. It’s a complicated case.

The Plaintiffs accuse the Defendants of violating Congress’s codified law which requires the Secretary of the HHS to combat misinformation on vaccination and increase vaccinations by pursuing an evidence based campaign. To help the Secretary do that the CDC is provided recommendations by the Advisory Committee on Immunization Practices (ACIP), formed under the Federal Advisory Committee Act (FACA). The Plaintiffs contend that Secretary Kennedy’s order to the CDC in May, 2025, to change vaccination recommendations violated the FACA’s required procedure for consultation. The ACIP has itself established a procedure called Evidence to Recommendation (EtR) which ensure that recommendations proceed from expert knowledge to action by the CDC. Secretary Kennedy’s order did not result from an EtR but was of his own creation.

Further, the Plaintiffs claim that Secretary Kennedy’s firing of all 17 members of the ACIP and reconstituting that body with 12 individuals not qualified according to stipulations of fair balance and inappropriate influence requirements of the FACA, provisions that according to the Administrative Procedure Act (APA) can be reviewed as to their lawfulness. Plaintiffs allege that the Secretary’s directive and his reconstitution of a wholly new ACIP with eight people who agree with him on Covid vaccines and three others who have no experience in vaccines and immunology violate APA by being arbitrary and capricious. This complaint was expanded to include all 15 of the current ACIP membership.

As the new ACIP performed its functions, the Plaintiffs added to their original complaint, arguing each time that the actions of the illegally constituted ACIP were also violations of law. In a Fourth Amended Complaint, Plaintiffs added the action of the CDC in January of this year to drastically change its immunization schedule (that specifies which groups of people get what shots when) reducing the 17 childhood immunizations to 11 and changing recommendations for Respiratory Syncytial Virus (RSV), Hepatitis A, Hepatitis B, Meningococcal ACWY, Meningococcal B, dengue, Rotavirus, COVID, and Influenza, all without recommendations from or resulting from consultations with ACIP. In fact, the changed schedule follows a Presidential order directing that the CDC bring its schedule into conformity with foreign health directives.

As you can see, the issues of law are particular and specific. A court case is not a venue for citizens to express general complaints about government action. The issues before the court are not directly about whether vaccinations are beneficial, not about the Covid vaccine and its efficacy, and not about the new vaccination schedule that the CDC is now proposing.

This aspect of the court’s business is not always understood by committed activists who want to input their opinions into the legal proceedings. For example, the group of Massachusetts physicians who wrote the court supporting Secretary Kennedy took the position that healthcare was under the rule of pharmaceutical corporations who create the vaccines, and they must be purged from the healthcare system because ever since mandatory vaccines have increased over the last century so has chronic diseases of all kinds. The group does not give any evidence of a causal correlation between increase vaccination and increased autism or cancer or other diseases but bases its argument on the conviction that “[c]hildren are born with perfect immune systems,” [original emphasis] so human meddling with that system violates natural processes that are assumed to be beneficial to humans. It’s an astonishing claim denying the complete history of medicine.

Behind or beneath the specific legal questions of this case — the congressional codification of what the HHS is for, how and why it does what it is supposed to do, the authority to do and the prohibition of what not to do – lies the dispute between vaxers and anti-vaxers.

In the Court’s order of temporary injunction, it is not only cognizant of that ideological dispute but tries to locate it relative to law. Law, the Court says, is like science (the judge quotes Carl Sagan), an imperfect system of knowledge, constantly correcting itself. Yet, faced with the darkness of ignorance, superstition, and chaos, they are all we have. They are methods for giving reality some order, reasonable procedures that provide society with the possibility (not the certainty) of regularity and betterment.

In law, the tedious attention to the minutiae of procedure (here the judge is thinking not only of the whole history of legal practice but of the specific creation of the American court system by the Constitution and Congress) has brought social achievements, one of which is the betterment of health in the nation (here the Court cites CDC’s own evaluation of its vaccination program in the first decade of this century as one of the nation’s ten greatest public health achievements and also CDC’s judgment that “[v]accines are one of the greatest achievements of biomedical science and public health”).

The nitty-gritty issues of procedure, therefore, are seen as boring but necessary jointures of a successful and socially beneficial Executive structure following the procedural laws of Congress. The court, as the third branch of the constitutional government, is tasked, then, to determine any violation of those democratically constituted procedures, violations which, while picayune, would jeopardize the national health standard.

This prefatory defense of the government as the agency of law seems somewhat unusual in a case in which the government is accused of wrongdoing. Yet, it shows the judge’s understanding that the minutiae of law he will examine have major, even revolutionary, consequences. That awareness re-emerges in an odd and convoluted way during the course of examining the minutiae of the laws constraining governmental decisions and actions.

Remember that the court memorandum and order I am analyzing is not the conclusion of this trial. It is the Court’s decision on the Plaintiff’s motion asking for an injunction, that is, an order to stop the harm that the alleged illegal activities cause before the trial determines whether those activities are or are not legal. At this pre-trial stage, the court can order a preliminary and temporary injunction to relieve harm if it finds that

• the Plaintiff is likely to succeed on the merits;
• the Plaintiff is likely to suffer irreparable harm;
• fairness to both sides, on balance, favors relief; and
• an injunction is in the public interest.

For all these conditions, the judge has to consider the Defense’s arguments, especially concerning the application of law, the interpretations of the governing rules and regulations, that is, the FACA and the APA (the Federal Advisory Committee Act and the Administrative Procedure Act). Among other arguments, the government insists that, in fact, there is no case because the decisions of the HHS Secretary and the CDC Director are discretionary by law (it’s just up to them, says the law); thus those decisions were not “reviewable” or subject to action by the court. Further, it argues that these decisions are not “final actions” but mere recommendations that have no necessary effects. As such, they are also not reviewable.

In his order, the judge refers five times to two almost identical exchanges between himself and the defense attorney for the government during oral argument on issue of reviewability. Here is one of those exchanges, on the authority of the CDC Director:

THE COURT: . . . let’s say that instead of revising the vaccine schedule, the CDC said, actually, we think measles is good for you; you should go have lunch with someone with measles, and we are sponsoring measles lunches in every city, come have some measles lunch, that would seem to — that would seem to go right up against the goal of preventing communicable diseases. Would such a policy by the CDC be judicially reviewable?

[DEFENSE COUNSEL:] I think that would still be committed to agency discretion by law.

THE COURT: So even if what the agency was saying is we like communicable diseases and we think you should get more of them, that’s not judicially reviewable.

[DEFENSE COUNSEL:] No.

In the other exchange, on the authority of the Secretary of HHS, the judge asks, “ . . . if the secretary said instead of getting a vaccine — instead of getting a vaccine to prevent measles, I think you should get a shot that gives you measles; is that unreviewable“? And, the defense counsel answers, “Yes.”

Apparently, the government thinks its job is to tell us what to do and we do it. That’s about power, not law.

The judge admits that these examples are “somewhat ridiculous” but adds that “the Court does not necessarily prejudge even this hypothetical, appreciating that counterintuitive solutions (particularly in the complex realms of health and science) can sometimes be correct (or at least reasonable).”

The question, then, has to be asked and the answer considered. Judge Murphy returns us in a covert way to the larger issue that underlies the litigation over legal procedures, because, in truth, the somewhat ridiculous notion that the government would actively try to inject us all with communicable viruses is the logical aim of those who argue that only natural immunization is socially beneficial. This recognition, however, is convoluted since Defense has asserted that the government is not anti-vaccination. The Court must accept – and so states — that the litigated dispute is not pro- vs. anti-vaccines.

We know, and Judge Murphy shows, that in complex political ways, that dispute forms the background for this litigation, on both sides, thus the importance, from the Court’s perspective, to insist on the law as defining what the government’s actions must follow. That law preceeds the present administration and clearly espouses the government’s responsibility to promote vaccination, explain it, expand its usage, increase immunization to reduce preventable infectious disease.

On that basis, this court has rejected CDC’s argument that its January, 2026, change to the immunization schedule was mandated by a Presidential order. The Court rejected this explanation because CDC did so illegally without consultation of the SCIP as required.

We shall see, when the trial opens, if the Court can hold on to its reason for existing within the constitutional framework and hold to the rules or if it will be swamped by political power. For the time being, it has stayed the CDC’s January, 2026, memorandum on childhood immunization schedule, stayed the appointment of 13 of the 15 new ACIP appointments, and stayed all votes of the stayed ACIP. It partially granted the Plaintiff’s motion for relief from the harms these actions caused.