California’s New Vaccine Law Shields Providers — While Leaving Injured Families With No Remedy

In 2025, California lawmakers, with the signature of Governor Gavin Newsom, enacted AB 144 — a sweeping statute that dramatically expands the authority of the California Department of Public Health (CDPH). Public debate has focused on how the law freezes outdated CDC guidance and empowers CDPH to operate a parallel, state-run vaccine policy and enforcement framework with minimal public oversight.

But buried within AB 144 is another serious problem—one that has gone largely unexamined. California has moved to shield vaccine providers from liability even when federal vaccine-injury compensation pathways no longer apply — without creating any alternative avenue for injured families to seek compensation.

That structure raises serious constitutional concerns.

For decades, vaccine liability has operated on a carefully constructed bargain: when government limits ordinary tort lawsuits, it must preserve some alternative path through which injured individuals may seek compensation. That principle underpinned the 1986 federal vaccine injury framework and explains why vaccine liability protections survived constitutional scrutiny. Providers were shielded only because injured families retained a legally cognizable avenue for redress, however imperfect.

AB 144 breaks that bargain.

When Federal Frameworks End — But the State Doesn’t Provide a Substitute

Under AB 144, California may continue recommending vaccines that the Advisory Committee on Immunization Practices (ACIP) no longer recommends, so long as CDPH maintains its own endorsement. At the same time, the statute extends broad immunity not only to physicians and pharmacists, but to individuals and entities that administer vaccines pursuant to CDPH guidance, including those operating under state-authorized outreach and public health programs.

The result is a system in which those who administer state-preferred vaccines are protected from liability, while children injured by those recommendations may be left without access to either federal compensation or traditional state tort remedies.

This concern is no longer theoretical. ACIP has voted to remove the universal Hepatitis B birth dose for infants born to Hepatitis B–negative mothers. Once the CDC adopts that recommendation, the newborn dose will likely fall outside the federal Vaccine Injury Compensation Program (VICP). In states that follow federal guidance, that shift simply restores parents’ ability to pursue ordinary negligence claims if a child is harmed. California, by contrast, has precluded that path.

How Vaccines Left Ordinary Tort Law

The 1986 Vaccine Act emerged after manufacturers faced mounting lawsuits over injuries linked to the diphtheria–tetanus–pertussis vaccine and warned they might exit the pediatric market altogether. Congress responded with a compromise: manufacturers and providers received substantial protection from tort litigation, but injured families were not left without recourse. In exchange, Congress created the Vaccine Injury Compensation Program (VICP), a no-fault federal tribunal funded by an excise tax on covered vaccines.

That protection was never unlimited. VICP applies only to vaccines listed on the Vaccine Injury Table, which in practice has tracked vaccines recommended by ACIP for routine childhood use and subject to the excise tax. Universal childhood vaccines such as MMR, polio, varicella, hepatitis B, Hib, pneumococcal conjugate vaccines, and HPV were included because they met those criteria.

Other vaccines — including travel vaccines, adult-only products like shingles, and vaccines recommended only for limited or special-risk populations — were never covered. When a vaccine is not covered by VICP, injured individuals retain their ordinary right to sue under state law.

COVID-19 vaccines occupy a separate legal category. They are governed by the federal PREP Act, which routes injury claims into the Countermeasures Injury Compensation Program (CICP). CICP is deeply flawed and rarely compensates claimants, but it exists as the designated federal remedy — which is why courts have thus far permitted broad PREP Act immunity to stand. Whether CICP provides constitutionally adequate redress remains under active legal challenge.

HepB and the Incentive to Silence Medical Hesitation

Despite evidence presented at the ACIP hearing — including the absence of placebo-controlled trials, the lack of long-term safety follow-up, and the near-zero risk of hepatitis B transmission to infants born to HepB-negative mothers — California has announced it will continue recommending the HepB birth dose. That decision reflects political resistance to federal change, not new scientific findings.

Lawmakers likely understood that many physicians and pharmacists would hesitate to administer a vaccine no longer supported by federal recommendations. AB 144 responds to that reluctance not by strengthening the evidence base, but by insulating providers from liability.

Lawsuits are barred except in cases of “gross negligence” or “willful misconduct,” standards that are extraordinarily difficult to meet when a product is administered pursuant to official recommendations. As a practical matter, ordinary accountability disappears.

California officials may argue that families could still turn to Vaccine Court. That assurance is legally fragile. VICP is not an automatic compensation system; it is an adversarial forum litigated by the Department of Justice. Federal attorneys routinely contest eligibility and jurisdiction, particularly when a vaccine is administered outside ACIP’s routine recommendations or intended population. Once ACIP withdraws routine endorsement of the newborn HepB dose, DOJ would have strong grounds to argue that resulting injuries fall outside the program’s presumptive coverage.

California cannot guarantee continued access to federal compensation.

COVID Vaccines and the Problem of Federal Preemption

COVID-19 vaccines raise a different, but related, legal issue. The FDA has sharply narrowed the authorized populations for updated COVID shots to adults over 65 and individuals with specified high-risk conditions. Under the Supremacy Clause, states may not promote or operationalize use outside the scope of federal licensure.

When California continues recommending COVID shots for populations the FDA has excluded, the issue is not the absence of a remedy but the absence of authority. States may not expand federally defined indications through policy or recommendation.

Due Process Still Matters

Both the California Constitution and the U.S. Constitution place real limits on the government’s ability to extinguish civil liability altogether. Due process principles prohibit the state from abolishing long-recognized rights of recovery without preserving some meaningful avenue through which injured individuals may seek compensation. The Supreme Court has long made clear that legislatures do not possess limitless power to abrogate common-law rights: when traditional remedies are taken away, a reasonably just substitute or other reasonable alternative mechanism for relief must be provided.

This requirement is neither novel nor vaccine-specific. It is the reason liability-limiting systems such as workers’ compensation survived judicial scrutiny. The right to sue was curtailed only because the state substituted a guaranteed, no-fault compensation scheme. California’s own workers’ compensation system reflects this longstanding rule: employees give up ordinary tort claims only because the law ensures a defined statutory pathway for recovery. Courts have repeatedly rejected attempts to eliminate rights of redress without providing a meaningful alternative, recognizing that due process does not tolerate remedial voids.

These constitutional limits matter most in the medical context, where government actively shapes behavior through public-health policy. States may recommend or promote medical interventions, but they may not simultaneously immunize providers from liability and deny injured individuals any realistic opportunity to seek compensation—particularly when state recommendations diverge from evolving federal guidance. 

That is the constitutional line AB 144 now approaches—and crosses.

A Collision Course with the Constitution

Rather than reckoning honestly with what the COVID era revealed — that COVID shots caused significant harm and that parts of the childhood vaccine schedule warrant serious reevaluation — California’s leadership has chosen to double down. That posture may be expected from pharmaceutical companies and professional organizations that increasingly function as their surrogates. But the state has different obligations: to protect families and children, not industry narratives or partisan positioning.

If California insists on operating its own vaccination regime, increasingly detached from federal science and regulatory judgment, it must also accept the legal responsibilities that accompany that power. It may create a state compensation system or allow ordinary negligence suits to proceed. What it cannot do is preserve an aggressive slate of state-preferred vaccines, immunize those who administer them, and deny injured families any meaningful path to be heard.

As federal reform accelerates and more vaccines lose their routine status, the legal and constitutional gap created by AB 144 will only widen. The statute places California on a direct collision course with federal vaccine policy and foundational principles of due process. Coercion without accountability is not public health. It is the exercise of raw power — and AB 144 crosses that line.