Texas group the Informed Consent Action Network has capitalized on fear surrounding supposed vaccine mandates
Just as the Covid-19 vaccine rollout began in earnest in the United States, the Informed Consent Action Network (Ican) sent its subscribers a “legal update” on its war against employers and schools planning to require the shots.
An unspecified number of organizations had supposedly dropped their mandates – one just after Ican took them to court – and the Texas-based anti-vaccination nonprofit was prowling for more plaintiffs.
“If you or anyone you know is being required by an employer or school to receive a Covid-19 vaccine, Ican is pleased to offer to support legal action on your behalf to challenge the requirement,” read the January email.
Ican was founded in 2016 by one of the loudest voices in the US anti-vaccine movement, Del Bigtree, who produced the widely discredited propaganda movie Vaxxed: From Cover-Up to Catastrophe. For the last year, the nonprofit has capitalized on fear surrounding supposed vaccine mandates, going on the offensive months before any lifesaving vaccines became available to the public. Now, as vaccine hesitancy persists, Ican’s legal blitz has fueled disinformation, using costly legal threats to deter schools and businesses from implementing vaccination requirements.
“If you have a limited budget to deal with litigation, it doesn’t matter if you might win at the supreme court level,” said Margaret Foster Riley, a professor at the University of Virginia School of Law. “The costs of that litigation are so existentially threatening that you’re not going to take the risk.”
Ican did not return the Guardian’s request for comment.
The US Equal Employment Opportunity Commission has already given the go-ahead to employers who want to require vaccines for employees in the workplace, according to recent guidance. However, the idea of a “vaccine mandate” is misleading, as students and workers still have the right to refuse a jab and won’t be involuntarily vaccinated, said Y Tony Yang, a professor of health policy at George Washington University.
Those who forgo a shot may be barred from some opportunities, although there’s still the possibility of waivers, exemptions and other work-arounds. Plus, they’ll likely have the ability to choose education or employment alternatives that don’t require vaccines.
“Sure, that’s a different school, might not be the school you want,” Yang said. “That’s the option.”
Vaccine requirements are already commonplace in academic settings and among healthcare workers in the US. But the specter of Covid-19 vaccine mandates nevertheless became a “calling card” for anti-vax groups like Ican – a lightning rod to “rally people” and “sow a lot of contentiousness”, said Rekha Lakshmanan, director of advocacy and public policy at the Immunization Partnership.
“There’s a theme of being very pre-emptive and opportunistic to sort of lay this foundation and seeds of doubt,” Lakshmanan said.
In fact, Ican may have targeted mandates so strongly because the Covid-19 vaccine – which has already reached more than 65% of US adults – represents “an existential threat” to its mission, Riley said.
“The more used to vaccination people are – and this is a population-wide experience – the less traction Ican has as an anti-vax organization,” she added.
If the anti-vax movement is a pyramid scheme, Ican sits at the top among the well-funded organizers and creators of misinformation, explained Dorit Reiss, a professor at the University of California, Hastings College of the Law.
Some of the nonprofit’s staff may be “true believers”, Reiss allowed. But as a whole, the institution is largely “cynical” and “manipulative”, far removed from the grassroots activists who act as door-to-door salesmen, spreading misinformation to friends and neighbors.
Since Ican’s inception, its leaders have attracted a substantial fan base through its pseudo-talk show hosted by Bigtree, established a strong relationship with the New York-based attorney Aaron Siri and fundraised millions for their mission.
“They are much better at promoting their message comparatively than many of the organizations that are in the public health space,” said Ana Santos Rutschman, an assistant professor at the Saint Louis University School of Law.
“They have resources directed at them. They are savvier.”
The nonprofit has made a home in Texas, where deeply rooted conservative beliefs around liberty and freedom have sprouted an active, sizable anti-vax community, including a political action committee that advocates for “vaccine choice”.
Earlier this month, a federal judge in Texas dismissed a lawsuit brought by employees of Houston Methodist hospital who had challenged the hospital’s Covid-19 vaccination requirement, in one of the first rulings of its kind. The hospital suspended 178 staff for refusing the shot, which some have described as “venom”.
“The political environment here was unfortunately prime and ripe for individuals and organizations like Ican to kind of set up shop in Texas,” Lakshmanan said.
Ican’s tactics and reliance on expensive legal services predate the pandemic, but threats of litigation became central to its strategy as it took on Covid-19 vaccine requirements.
In 2019, $1.26m of the nonprofit’s $3.5m total expenses went to Siri’s law firm, Siri and Glimstad, and this year, the nonprofit described Siri as its legal team leader. In February, Siri published a warning that organizations with Covid-19 vaccine requirements would “run afoul of the law”, which could land them in court.
“Such potentially costly lawsuits can be avoided by refraining from adopting policies that require vaccination or penalize members for choosing not to be vaccinated,” he wrote for Stat, a health-focused outlet produced by Boston Globe Media.
Siri’s incendiary op-ed focused on the vaccines’ emergency use authorizations (EUAs), which have allowed Americans to access the shots for months even though the US Food and Drug Administration (FDA) has yet to fully approve them.
As with any products approved for emergency use, US code requires that patients be informed of their choice to “accept or refuse administration” of the Covid-19 vaccines, and “of the consequences, if any, of refusing”.
In recent months, Siri’s firm has leaned on that provision along with other, weaker claims to lodge a barrage of attacks against an eclectic group of organizations requiring Covid-19 vaccinations, including New Jersey universities, a Wisconsin nursing home and a North Carolina sheriff’s department, the Washington Post reported.
“It’s these subliminal messages that are being issued out to entities,” Lakshmanan said. “‘Hey, if you’re going to even consider this, this is what we’re going to do, and this is what we already started to put into motion.’”
But in May, Ican at least pressed pause on actively recruiting plaintiffs and announced it would no longer accept cases fighting vaccine requirements. Although there’s still a legal grey area around mandates for EUA-authorized vaccines, experts are increasingly confident that, on balance, the courts would likely uphold them.
Meanwhile, with Pfizer, BioNTech and Moderna already applying to get their vaccines fully approved by the FDA, companies and institutions will likely benefit from over a century of judicial precedent defending mandatory vaccinations in coming months.
And, for employers, the prospect of a Covid-19 outbreak after a year of unexpected closures may now outweigh any hypothetical litigation.
“The risk of losing the lawsuit is probably smaller, even if it means that the mandate will only be in place for six months,” Reiss said. “That’s already a lot.”
Still, Ican isn’t going away. During this legislative session, Bigtree testified in front of Texas lawmakers to push for a bill that would have scared and confused patients. More recently, the nonprofit has tried to discredit Dr Anthony Fauci after obtaining a series of his emails through the Freedom of Information Act.
“They attract a lot of traffic,” Santos Rutschman said, “wherever they decide to go.”