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Column: With its 'Chevron' ruling, the Supreme Court claims to be smarter than scientific experts

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Column: With its 'Chevron' ruling, the Supreme Court claims to be smarter than scientific experts

Second only to the Supreme Court’s ruling Monday on when presidents are immune from criminal prosecution, the biggest case of the court’s recently completed session involved the age-old conflict between judges and government regulators.

The case concerned a 40-year-old precedent known as “Chevron deference.” That doctrine held that when a federal law is ambiguous, the courts must defer to the interpretations offered by the agencies the law covers — as long as those interpretations are “reasonable.” On Monday, the court discarded Chevron deference.

This may sound like an abstruse legalistic squabble, but it has massive implications for Americans in all walks of life. It could subject agency decisions on scientifically based issues such as clean air and water regulations and healthcare standards to endless nitpicking by a federal judiciary that already has displayed an alarming willingness to dismiss scientific expertise out of hand, in favor of partisan or religious ideologies.

In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden.

— Supreme Court Justice Elena Kagan

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The ruling amounts to an apogee of arrogance on the part of the Supreme Court’s conservative majority, wrote Justice Elena Kagan in a dissent joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. But it’s not a new development.

“The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration,” Kagan wrote; “its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education…. In one fell swoop, the majority today gives itself exclusive power over every open issue — no matter how expertise-driven or policy-laden.”

Chevron deference originated in 1984, when environmentalists were fighting an effort by the EPA under Ronald Reagan to loosen clean air rules at the behest of industrial polluters. As it happens, the environmentalists lost that battle, but over time they won the war against deregulation.

Conservatives have had it in for Chevron deference for a long time; given their current majority on the court, the doctrine’s death has been a foregone conclusion, awaiting only the appearance of a suitable case to use as a bludgeon. Indeed, the majority was so impatient to kill the doctrine that the court’s six conservatives chose to do so by using a case that actually is moot.

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That case arose from a lawsuit brought by the herring industry, which objected to a government policy requiring herring boats to pay for government observers placed on board to make sure the boats were complying with their harvesting permits.

The rule was imposed under the Trump administration, but it was canceled in April 2023 by Biden, who repaid the money that had been taken from the boat owners — so there’s nothing left in it for the court to rule on.

Interestingly, Chevron deference was not always seen as a bulwark protecting progressive regulatory policies from right-wing judges, as it’s viewed today. At its inception, it was seen in exactly the opposite way — as giving conservative policies protection from progressive-minded judges.

The Natural Resources Defense Council, which brought the original case in an effort to preserve Clean Air Act regulations that were being overturned by the Reagan administration, counted the 1984 ruling as a severe loss.

At issue then was the definition of a pollution “source.” Past practice defined it as a single building or smokestack; the administration wanted to redefine “source” broadly, as referring to an entire pollution-emitting plant. This wasn’t a trivial difference. The NRDC’s interpretation was more stringent than the government’s, for the latter allowed a polluter essentially to hide law-breaking emissions within an otherwise non-polluting plant.

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The original Chevron ruling was 6 to 0 (three justices didn’t participate — two because of illness and the third, Sandra Day O’Connor, recused herself because of a conflict of interest). The ruling stated that when a federal law was ambiguous or silent on a particular issue, judges were bound to defer to the interpretation offered by the agency covered by the law, as long as its interpretation was “reasonable.”

One other thing: The functionary pushing to give industry more freedom to pollute was Reagan’s Environmental Protection Agency administrator, the late Anne Gorsuch. Name sound familiar? Justice Neil M. Gorsuch, who is her son, lined up with the anti-Chevron majority. Curiously, he didn’t mention his family history in his separate concurrence — or perhaps not so curiously, because his mother was on the winning side of the decision that he has now voted to overturn.

In any event, Gorsuch’s words about the case in which his mother triumphed were telling. “Today,” he concluded gleefully, “the Court places a tombstone on Chevron no one can miss.”

The truth is that the Chevron ruling of 1984 and Monday’s ruling both served a goal shared by Anne Gorsuch and her offspring: providing federal judges all the leeway they might need to see things the way Big Business prefers.

Forty years ago, when the Reagan White House was pulling down a regulatory edifice that industry resented, the Supreme Court was happy to have judges defer to the agencies participating in that project, including Anne Gorsuch’s EPA. Today, when the deregulatory process is opposed by government agencies that take seriously their duty to make life better for the average consumer, the court tells judges that they’re free to ignore agency findings.

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In his majority opinion, Chief Justice John G. Roberts Jr. called Chevron “misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

This is self-refuting. Chevron deference isn’t about “resolving ambiguities” in the law. It’s about recognizing that sometimes those ambiguities are deliberate — put in place by lawmakers who know they can’t possibly write a law that covers all situations from now to the end of time. The “ambiguities” are there because Congress wishes that the agencies it has charged with fulfilling its goals use their technical and scientific knowledge to meet the challenges of a changing world.

Things have indeed changed. Generally speaking, wrote legal scholar Cass R. Sunstein in 2019, environmentalists and other progressives saw the original decision as “a capitulation to the (insufficiently zealous) administrative state, which was often captured by powerful private interests.” Today, the right wing portrays the “administrative state” as a shadowy cabal bent on thwarting the will of the people (that is, conservative policies). “The right and the left have switched sides,” Sunstein observed.

Chevron deference was very much a product of its time, Sunstein noted. In the 1960s and 1970s, “federal courts had been aggressively reviewing agency action (and inaction), often with the goal of producing greater regulation.” Typically, “the judges were on the political left.”

They had grown up professionally in the atmosphere created by the Warren court, which fostered the notion that the courts existed to protect and extend individual rights. “To their defenders,” Sunstein wrote, “the lower federal courts assumed a kind of heroic stance.”

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This was the era that brought us an unprecedented, judicially driven expansion of individual rights, through such decisions as Griswold vs. Connecticut (1965), which established the right of married couples to use contraceptives without state interference; Loving vs. Virginia (1967), which invalidated laws against interracial marriage; and of course Roe vs. Wade (1973), which established the nationwide right to abortion.

The current conservative majority has already begun to roll back this historic approach to individual rights, most notably through the Dobbs decision of 2022, which overturned Roe vs. Wade.

Justice Clarence Thomas has suggested that Griswold should follow Roe vs. Wade into the juridical dumpster, along with Lawrence vs. Hodges (2003), which invalidated state laws against sodomy among consenting adults, and Obergefell vs. Hodges (2005), which legalized same-sex marriages nationwide. The court, Thomas remarked in his concurring opinion in Dobbs, “should reconsider” those rulings.

Those cases were decided on different grounds from Chevron, but liberal judges saw the expansion of individual rights as part of the same principle that prompted them to aggressively examine agency actions that tended to narrow those rights.

As it happens, the Chevron decision didn’t generate much interest when it was handed down. The six justices who ruled unanimously in the EPA’s favor apparently thought they were weighing in on a narrow technicality. One legal scholar has called Chevron an “accidental landmark”; its significance only emerged from subsequent federal rulings and, perhaps most important, its embrace by Justice Antonin Scalia, who joined the Supreme Court two years later.

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Scalia wrote in a 1989 law review article that Chevron deference made sense in the modern world: If there was an ambiguity in the law, the reason was either that Congress was sloppy (in which case the courts had the duty to say what a law meant) or that the lawmakers deliberately delegated to agencies the task of responding to changing realities by using their “advancing knowledge.” Over time, to be sure, he grew discontented with the doctrine (as Roberts and Gorsuch took pains to point out.)

Monday’s decision puts the lie to conservatives’ oft-expressed disdain for policies made by “unelected” bureaucrats. “Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability,” Kagan wrote. Calling the decision “a bald assertion of judicial authority, she added: “The majority disdains restraint, and grasps for power.”

That’s not to say that the majority won’t share the power they have now arrogated for themselves. They will walk hand-in-hand with the Big Business leaders and conservative ideologues who put them on the court, and the rest of us will just have to live with the consequences.

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How the power of the Minions and Gen Z propelled the 'Despicable Me' franchise

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How the power of the Minions and Gen Z propelled the 'Despicable Me' franchise

It was a spectacle (and for some, a menace) when droves of suit-clad young men showed up to theaters for 2022’s “Minions: The Rise of Gru.”

Against all odds, the #Gentleminions social media phenomenon showed that the Minions — up until that point, a staple of Facebook memes shared by very-online moms — could evolve as a cultural touchstone for that coveted demographic, Gen Z. The Minions had come full circle, staying relevant to the children who first met the yellow mischief-makers in 2010’s “Despicable Me” all the way through their young adult years.

It’s the kind of organic marketing that studios and theater owners can only dream of. Universal Pictures and Illumination Entertainment are counting on that multigenerational popularity to propel the franchise’s latest installment, “Despicable Me 4,” which comes out in theaters Wednesday.

So far, the signs are good. The movie is tracking to garner at least $100 million in ticket sales for the U.S. and Canada for the five-day Fourth of July extended weekend.

The last “Minions” movie broke Fourth of July domestic box office records and went on to make $940 million worldwide. This time around, families are already primed to hit the theaters with the recent success of Pixar’s “Inside Out 2,” which has now grossed more than $1 billion in global ticket sales.

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“I’ve been 25 to 28 years in the business. I can’t remember something that created that much excitement for the audiences,” Francisco Schlotterbeck, chief executive of theater chain Maya Cinemas, said of the overall Minions craze. “The other thing I can compare it to is ‘Toy Story.’”]

Theaters have been eager for good news. Exhibitors earlier this year were walloped by a dearth of blockbusters, partly due to Hollywood’s long summer of strikes in 2023, which delayed multiple high-profile titles. Though a string of recent hits has brought relief, with “Bad Boys: Ride or Die,” “Inside Out 2” and “A Quiet Place: Day One,” domestic revenue remains down 19% from last year, according to Comscore.

“Despicable Me 4” is expected to continue the momentum. Maya Cinemas’ ticket pre-sale numbers for the sequel are trending up, and Schlotterbeck is expecting sales that are “triple of a normal week.” Family-friendly movies, like the “Despicable Me” franchise, do especially well with Latino audiences, he said, which his chain is geared toward.

After a tough first half of the year with limited films to show, he’s expecting better sales for the months ahead, especially with family films such as “Moana 2,” “Sonic the Hedgehog 3” and “Wicked” coming down the pipeline.

“All these big family titles will help,” said Schlotterbeck, whose chain has five locations in California and one in Las Vegas. “It’s pretty important to have these kind of very well-known franchises.”

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Theaters are preparing for all kinds of Minions fans to flood the gates this weekend. Dine-in theater chain Cinépolis Luxury Cinemas USA plans to raffle off themed baby carriers that hold a popcorn bucket to tie in with supervillain Gru’s new role as a dad, said Luis Olloqui, company chief executive.

“Having the previous ‘Minions’ movie was really good, in terms of performance,” he said. “We saw that excitement among the people going to the movie dressing up and making it more of an event. This time, we are expecting kind of the same.”

The cross-generational popularity of the Minions stems from their cute appearances and humorous antics. But part of the appeal is also that they’re a bit of a blank slate, said Carrie Wilson-Brown, an instructor at the University of Illinois’ College of Media. In the same way that Sanrio icon Hello Kitty has advertised both motor oil and diamond necklaces and regularly wears all teams’ baseball caps, the Minions have become a canvas on which you can project whatever you want.

Minions are on all manner of merchandise these days. There are Minion Chia pets, Minion mugs, Minion sandwich makers and Minion toasters. For Los Angeles residents, there’s even the giant Minion that peeks over the edge of a Universal Studios parking structure to spy on the 101 Freeway (which has spawned memes of its own).

“You can infer anything out of it,” Wilson-Brown said. “They can even travel culturally, not from generation to generation, but from country to country because they don’t speak a particular language.”

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It’s how the Minions joined the front lines of Facebook mom memes, which typically pair a picture of a Minion with unrelated sayings such as “I didn’t fall, the floor just needed a hug” or “I’ve been hiding from exercise. I’m in the fitness protection program.”

But the #Gentleminions craze was a turning point, when Gen Z consumers tried to take back the Minions of their childhood, Wilson-Brown said.

“You note your popularity specifically when you get internalized into meme culture,” she said. “In terms of ‘Despicable Me’ and the Minions specifically, all of a sudden, they kind of transcended out of the film into internet culture.”

Companies face a delicate dance while trying to court Gen Z audiences, who have expendable income they’re willing to plunk down on pop culture merchandise. Try too hard to appeal to them, and it seems inauthentic; try too little, and it looks like the product isn’t actually meant for them.

“Film companies and traditional media are desperately trying to constantly see what Gen Z-ers are producing in a cultural milieu, but in many respects they’re trailing behind them,” Wilson-Brown said.

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Will the #Gentleminions return for a second ride?

“I’d be hard-pressed to believe they’re going to be re-creating that same thing over and over again,” Wilson-Brown said. “Because that was so organic, it’s really hard to then predict … what they are going to end up doing to up the ante, culturally, for this particular film.”

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Microsoft to pay $14.4-million settlement over alleged parental, disability leave discrimination

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Microsoft to pay $14.4-million settlement over alleged parental, disability leave discrimination

Microsoft will pay a $14.4-million settlement after California’s Civil Rights Department accused the company of retaliation and discrimination against workers who take parental or disability leave, or leave to take care of a family member.

Workers at Microsoft in California experience disadvantages in pay and promotion opportunities when they take these types of protected leave, a multiyear investigation by the Civil Rights Department found.

Employees who took protected leave would receive lower bonuses and unfavorable performance reviews, the department said in its complaint, filed July 1 in Santa Clara County. When Microsoft managers awarded annual bonuses, stock awards, or merit increases they did not consider time on protected leave as time where employees were actively working — although other forms of leave were not discounted, according to the complaint.

Women and people with disabilities were disproportionately affected, the department alleged.

Some Microsoft managers also allegedly commented negatively about employees who took leave, and workers have reported concerns with retaliation after requesting or taking protected leave.

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“Microsoft’s challenged actions are ongoing and will continue to harm,” the complaint states.

Microsoft spokesperson Sarah Naciri said the company disagreed with the allegations.

“Microsoft is committed to an environment that empowers our employees to take leave when needed and provides the flexibility and support necessary for them to thrive professionally and personally,” Naciri said in an emailed statement. “While we believe the agency’s allegations are inaccurate, we will continue to listen, learn, and support our employees.”

Although Microsoft is headquartered in Redmond, Wash., it maintains offices and employees in California, mostly concentrated in the Bay Area.

Nearly all the money from the agreement will go toward current and former employees eligible for direct relief. A worker is eligible if they worked for Microsoft in California in 2017 or later for at least three months and took a leave of absence protected under state or federal law.

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As part of the settlement, Microsoft agreed to hire an independent consultant to examine and make recommendations on the company’s personnel policies to ensure managers do not consider time on protected leave in determining annual rewards and promotions.

The company also agreed to train managers and human resources personnel about this kind of discrimination, and to ensure employees know how to raise complaints if they believe they were denied annual bonuses or other awards unfairly.

Additionally, the independent consultant will provide annual reports to the Civil Rights Department on how complaints of discrimination are received and processed.

Last month, California’s Civil Rights Department reached a $15-million settlement to resolve allegations of sexual harassment, discrimination and retaliation at Snap, the Santa Monica-based company that created the popular social media app Snapchat.

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Column: Anthony Fauci's memoir strikes a crucial blow against the disinformation agents who imperil our health

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Column: Anthony Fauci's memoir strikes a crucial blow against the disinformation agents who imperil our health

Just after Thanksgiving 2021, Dr. Anthony Fauci visited a high school in the Anacostia neighborhood of Washington, D.C. His goal was to promote the safety of COVID-19 vaccines in a primarily Black community, where vaccine rates were lower than in the rest of the capital.

Fauci was joined by Barack Obama — the fifth of the seven presidents he would serve during his more than half-century career as a public health official. Together they made the rounds of vaccination booths in the school gym, posing for photos. As they were getting into their cars after the visit, Obama turned to him with a word of encouragement.

Fauci had been accused by congressional crackpots such as Sens. Rand Paul (R-Ky.) and Jim Jordan (R-Ohio) of having helped to create the COVID virus, unleashing the pandemic, and by Rep. Marjorie Taylor Greene (R-Ga.) of having masterminded nationwide pandemic shutdowns. Credible death threats against him had prompted the government to provide him with 24-hour security protection.

AIDS had made me a target, but that was largely before social media…. Now my family and I were barraged by emails, texts, and phone calls … with foul language and sexually explicit messages and threatened with violence and even death.

— Anthony S. Fauci

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Obama’s advice carried so much weight that Fauci, 83, has used it, in its original Latin, as the title of a chapter of his newly published memoir, “On Call: A Doctor’s Journey in Public Service.” That chapter, concerning the maelstrom of abuse he sustained as a right-wing whipping boy during the pandemic, is called “Illegitimi Non Carborundum.”

Published in mid-June, “On Call” is an indispensable addition to the growing shelf of books by medical and scientific professionals fighting back against the tide of disinformation undermining public health in the U.S.

Over the last few months I’ve reported on others, including “The Deadly Rise of Anti-Science” by pediatrician and immunologist Peter Hotez and “We Want Them Infected” by neurologist Jonathan Howard, which demolishes the claims of anti-vaccine ideologues such as Stanford’s Jay Bhattacharya.

This year has brought us not only Fauci’s book but “Tell Me When It’s Over” by vaccine expert Paul Offit, which takes aim at the “COVID myths,” which anti-vaxxers have wholesaled to encourage vaccination resistance in the general public.

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Fauci’s book stands out because its author has chosen to place the abusive, ignorant treatment he received from disinformation grifters in and outside of government beginning with the Trump years in the context of his long career as a public servant.

His work started with his joining the National Institutes of Health as a fellow in 1968, at the age of 27. He stayed there, as a staff member and ultimately as director of the National Institute of Allergy and Infectious Diseases, until his retirement in 2022.

Over that time, Fauci became the nation’s most respected and influential immunologist. His public role first emerged with the appearance of AIDS in 1981. Within a few months, he decided to leave the routine research he had been doing on human immune response and focus instead on “this mysterious new disease seemingly restricted at this point to gay men.”

It was a soul-crushing experience. The cause of AIDS was not understood until 1983, when the human immunodeficiency virus, or HIV, was identified as the culprit. There were no effective treatments, much less a cure. Fauci describes himself watching powerlessly as NIAID wards filled with patients facing a death sentence.

“None of my training or temperament,” he writes, “provided a bulwark against that horrible, inevitable outcome…. All of us who worked on the ward with those patients had to stuff away our feelings of loss, day after day, just to be able to carry on.”

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A youthful Anthony Fauci opens an AIDS conference in Lausanne, Switzerland, in 2004.

(LAURENT GILLIERON/AP)

Fauci also became a target of AIDS activists, who blamed him for failing to persuade his bureaucratic superiors to pull out all the stops on AIDS research — among them the playwright Larry Kramer, who in 1988 wrote an op-ed in the San Francisco Examiner headlined “I Call You Murderers, an Open Letter to an Incompetent Idiot, Dr. Anthony Fauci.”

Yet Fauci’s efforts to bring Kramer and other activists into the official meetings, and his championing of a full-scale government program to battle the disease, ultimately brought them together by the time Kramer succumbed to AIDS in 2020. “A complex relationship, indeed,” Fauci writes.

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But the experience with AIDS didn’t prepare Fauci for the abuse he received as “the de facto public face of the country’s battle” with COVID. “AIDS had made me a target, but that was largely before social media,” he writes. “Now my family and I were barraged by emails, texts, and phone calls… with foul language and sexually explicit messages and threatened with violence and even death.” Right-wingers and GOP politicians even called for Fauci’s prosecution.

The problem began with Trump, who was courteous with Fauci in private and even seemed to accept his truth-telling about the seriousness of the developing crisis — but at public rallies dismissed COVID as a Democratic “hoax.”

Fauci is judicious about many of the administration officials he worked with as a member of Trump’s COVID task force, including Vice President Mike Pence, who Fauci says seemed sincerely to face up to the crisis but was hamstrung by his sedulous fealty to Trump. But he’s contemptuous about those who exploited the public’s unfamiliarity with the scientific method to cast doubt on necessary pandemic countermeasures and hype useless nostrums.

“People associate science with absolutes,” he writes. But science is a process in which new information is absorbed and evaluated, leading to new conclusions.

That was the case with the government’s advice against masking, issued when the pandemic was new, its means of transmission unknown, and hospitals were suffering a severe shortage of surgical masks and other protective equipment.

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When the shortages eased and it became clear that masks would help stem the spread of COVID, the advice changed — but was portrayed on the right as an example of deliberate deceit by government experts.

Those who earned Fauci’s contempt include Peter Navarro, a Trump economic advisor who marched into a White House meeting after Fauci had dismissed hydroxychloroquine, an antimalarial drug Trump was touting as a COVID treatment, dumped a pile of papers on the table and barked at Fauci: “I have all the evidence in the world that hydroxychloroquine works. And by preventing people from getting it, you have blood on your hands!”

Navarro is currently serving a prison sentence for ignoring a subpoena from a House committee investigating the Jan. 6, 2021, insurrection.

Fauci’s inclination to be candid about the perils of COVID and the value of social counter-methods eventually led to his being muzzled by the White House, barred from appearing on cable news shows even as the COVID toll increased inexorably. Nearly 1.2 million Americans have succumbed to the disease, the U.S. toll from which is by far the worst in the developed world.

“Attacks on me came daily,” Fauci relates. Right-wing organizations and Republicans in Congress kept “digging for something that would discredit me. When nothing was found, they just made up stories with no evidence whatsoever to back them up.”

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Paul advanced the baseless charge that Fauci’s institute, via a grant to the research organization EcoHealth Alliance, had caused the pandemic, even though the research EcoHealth had funded at China’s Wuhan Institute of Virology could not conceivably have produced the SARS-CoV-2 that causes COVID.

In his book, Offit, director of the Vaccine Education Center at Children’s Hospital of Philadelphia and a member of the Food and Drug Administration panel that rules on the safety and efficacy of vaccines, traces his own experience with the anti-vaccine movement.

Offit ably traces the origin of the modern anti-vaccine movement to a fact-free campaign in 1982 blaming the whooping cough vaccine for childhood injuries, which was taken up by the mass media but had no basis in fact. It was augmented by a fraudulent 1998 paper tying the MMR (measles/mumps/rubella) vaccine to autism.

The paper was eventually retracted by its publisher, the British journal the Lancet, and its main author, Andrew Wakefield, was stripped of his British medical license. But the paper’s infliuence is still shown by resistance to the MMR vaccine in Britain and pockets in the U.S., where Wakefield is lauded by anti-vaccine agitators as a hero.

Offit shows how the messaging of anti-vaxxers has evolved from claims about the purported health hazard of vaccines into a movement for “medical freedom” — the right of individuals to decide for themselves “what we can or can’t put into our bodies or the bodies of our children.”

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That turns the very concept of public health on its head. “Public health had morphed into private decisions, the public be damned,” Offit writes.

He ties the anti-vaccine movement to other health-related conspiracy-mongering, such as the notion that COVID originated in that Chinese lab, despite overwhelming scientific evidence that it reached humans the way other viruses have throughout history — as a spillover from wildlife in contacts with humans.

Even before that, the drumbeat of campaigns against vaccines resulted in a dangerous skepticism about science just when sober scientific judgments were most needed.

“The outside impact of these conspiracy theories on the American public meant that the war against Covid would soon become a war against ourselves,” Offit writes. “Much of the suffering and deaths from Covid could have been prevented had people chosen to be vaccinated. But they believed the myths. As a result, hundreds of thousands of people died needlessly.”

Doctors and scientists have been pondering with ever-increasing urgency how to combat the tide of science denialism that infects public health policymaking and public discourse. They’re facing a tough enemy, because the underlying driver of conspiracy movements is grift — the purveying of disinformation for profit and fame — witness the rise of anti-vaxxer Robert F. Kennedy Jr. to political prominence.

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Fauci, Offit, Hotez, Howard and other responsible scientists are placing their livelihoods, reputations and even their safety on the line to bring the facts to the American public. They’re heroes, and we must heed their efforts to protect science from charlatans and frauds, for our own good.

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