physician

WASHINGTON — Warning signs of eroding trust in public health under Health and Human Services Secretary Robert F. Kennedy Jr. have prompted growing calls for his resignation from Democratic lawmakers, career public servants and his own family. But one doctor-turned-governor has other ideas.

Democratic Gov. Josh Green of Hawaii, a career emergency room physician, has privately pressed the Trump administration to create a new post for Kennedy that would remove him from responsibility over vaccines, while allowing him to focus on areas of public health where his theories enjoy greater scientific backing — on nutrition, pesticides and chronic disease, the governor said in an interview.

“They’ve simply gone too far, and it’s not the president who’s gone too far. It’s Secretary Kennedy,” Green told The Times, suggesting two Republican appointees — Mehmet Oz, Trump’s current administrator for the Centers for Medicare & Medicaid Services, and Jerome Adams, former U.S. surgeon general during Trump’s first term — as potential replacements he would publicly support.

“We’re entering flu season,” Green said. “These viruses, if people aren’t vaccinated, will cause large numbers of excess fatalities, and there will be no one to look to for responsibility other than the secretary of Health.”

“I recommended it to people at the highest levels, and I have worked hard to maintain a constructive relationship with the current administration,” Green added. “It’s up to them to make this call. But you can see now that it’s very possible.”

A tense public hearing on Capitol Hill last week laid bare bipartisan concerns over Kennedy’s vaccine skepticism, with three Republican senators — Bill Cassidy of Louisiana, John Barrasso of Wyoming and Thom Tillis of North Carolina — expressing alarm at turmoil within the Centers for Disease Control and Prevention over vaccine guidance and accessibility.

Kennedy, at the hearing, stated without evidence that COVID-19 vaccines had caused harm and death, and questioned CDC statistics on how many lives they had saved.

“The president is not pleased deep down with this as a distraction,” Green added. “It is not helpful to any administration to have outbreaks.”

A Western health alliance

Without changes in Washington, Hawaii will join a burgeoning alliance of western states to issue independent public health guidance, Green said.

The West Coast Health Alliance, formed this month by California, Washington and Oregon, will issue recommendations that rely on many of the career scientists and experts dismissed by Kennedy in recent months, as well as organizations such as the the American Academy of Pediatrics and the American Heart Assn.

Hawaii Gov. Josh Green shown during a black-tie dinner at the White House in 2024.

(Anna Rose Layden / Getty Images)

Kenneth Fink, director of the Hawaii Department of Health, will be the state’s day-to-day representative to the alliance. But “as a physician, I’m also available to the group, to help bring other experts from across the country into the fold,” Green said.

The collective has not yet decided whether to set up a formal alternative to the CDC’s Advisory Committee on Immunization Practices, or ACIP, a vaccine advisory panel of experts whose entire membership was fired by Kennedy and replaced by vaccine skeptics.

But many experts are already in touch with Green and other members of the alliance, which has begun discussing how to structure itself.

Green, 55, will serve next year as head of the Western Governors Assn., representing 19 states west of the Mississippi River, and is encouraging other states to join the effort, including those led by Republicans. “I really do want to take public health out of politics,” he said.

Already, Green and his counterparts have discussed executive actions they can take at the gubernatorial level, in coordination across the alliance, to protect vaccine access.

Vaccines pushed off-label by the FDA may need special authorization for access, for example. States may also need to fund vaccine access to individuals who fall outside new federal recommendations for eligibility.

Hawaii already anticipates having to spend $15 million in state dollars to ensure everyone who wants a COVID booster shot can receive one, supplementing federal funding, the governor said.

“There are going to be some needs to use executive orders from us as governors,” Green said. “I will be doing that. And I’ll be recommending that to my colleagues in the alliance.”

A national security threat

In May, Green traveled to Washington to testify before a Senate subcommittee where Republican lawmakers were holding a hearing titled, “The Corruption of Science and Federal Health Agencies.” Its main target was the administration of COVID vaccines.

Green was the sole defender of the pandemic response on a six-member panel.

“As a physician, I cared for patients all the way through the COVID pandemic, and we would have had thousands of additional deaths if we didn’t vaccinate our state,” he said. “This is no joke.”

“Mr. Kennedy referred to his Senate hearing as theater,” he added. “It’s not theater when you’re an ER doc and you’re caring for patients and having to intubate them.”

Hawaii emerged from the pandemic with the lowest mortality rate of any state in the union, and one of the highest vaccination rates. Green served as lieutenant governor at the time.

Health and Human Services Secretary Robert Kennedy Jr. testifies before the Senate Finance Committee.

(Andrew Harnik / Getty Images)

A CDC analysis presented in June, under Kennedy’s leadership, found that COVID vaccines “have been evaluated under the most extensive safety monitoring program in U.S. history,” rejecting conspiracy theories around their association with a range of alleged side effects.

The CDC has found a rare but statistically significant number of cases of myocarditis, or inflammation of the heart, in males between ages 18 and 24 who have taken the shots, 90% of whom experience full recoveries and resulting in no known deaths.

Under Kennedy, for the first time since its introduction, the COVID vaccine has become difficult to find. The FDA has revoked emergency-use authorization for the shots and is recommending them only for individuals over 65 years old, or those over 5 with underlying health conditions.

The Trump administration has also gutted funding of the National Institutes of Health and cut $500 million in funding for mRNA vaccine research, a development that Green called an imminent risk to national security, allowing countries such as China to dominate access to critical technologies during future public health emergencies that could leave Americans vulnerable.

Trump himself has indicated concern, last week telling reporters, “I think you have to be very careful when you say that some people don’t have to be vaccinated. It’s a very, you know, it’s a very tough position.”

“You have vaccines that work. They just pure and simple work,” Trump added. “They’re not controversial at all. And I think those vaccines should be used, otherwise some people are going to catch it and they endanger other people. And when you don’t have controversy at all, I think people should take it.”

Green saw Trump’s remarks as a sign of a potential shift.

“I think that Secretary Kennedy is doing our country a disservice, and frankly, he’s doing the president a disservice,” Green said. “This is going to hurt the president of the United States and his administration.”

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More to come,
Michael Wilner
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Robert F. Kennedy Jr., the nation’s health secretary and a longtime vaccine skeptic, struck a defiant tone Thursday as he faced bipartisan criticism over changes he has made to reorganize federal health agencies and vaccine policies, telling senators that he is determined to “eliminate politics from science.”

In the testy appearance before the Senate Finance Committee, Kennedy repeatedly defended his record in heated exchanges with senators from both parties and questioned data that show the effectiveness of vaccines. In turn, senators accused him of taking actions that contradict his promise seven months earlier that he would do “nothing that makes it difficult or discourages people from taking vaccines.”

“Secretary Kennedy, in your confirmation hearing you promised to uphold the highest standard for vaccines. Since then, I’ve grown deeply concerned,” Sen. John Barrasso of Wyoming, a top-ranking Senate Republican and a physician, said during the hearing.

Kennedy forcefully denied that he has limited access to vaccines and defended his record in restoring trust in federal healthcare agencies under the umbrella of the U.S. Department of Health and Human Services.

“They deserve the truth and that’s what we’re going to give them for the first time in the history of the agency,” Kennedy told senators.

From the outset, it was expected that Democrats would slam Kennedy’s record. Some of them called on him to resign and accused him of politicizing federal health policy decisions. But three other Republicans, including Sen. Bill Cassidy of Louisiana, who was key in advancing Kennedy’s nomination, joined Democrats in criticizing Kennedy’s actions, mostly pertaining to vaccine policy changes.

Thursday’s session marked a peak of bipartisan frustration over a string of controversial decisions by Kennedy that have thrown his department into disarray. Kennedy dismissed an entire advisory panel responsible for vaccine recommendations and replaced its members with known vaccine skeptics. He withdrew $500 million in funding earmarked for developing vaccines against respiratory viruses. And, just last week, he ousted the newly appointed director of the Centers for Disease Control and Prevention following disagreements over vaccine policy.

In an op-ed published in the Wall Street Journal on Thursday, Susan Monarez, the former CDC director, wrote that she was forced out after she declined to recommend people “who have publicly expressed antivaccine rhetoric” to an influential vaccine advisory panel.

At the hearing, Kennedy said Monarez was lying. Instead, he said he fired her because he asked her if she was trustworthy, and she told him, “no.”

He added that he fired all the members of the vaccine panel because it was “plagued with persistent conflicts of interest.”

“We depoliticized it and put great scientists on it from a very diverse group, very, very pro-vaccine,” he claimed.

In questioning, however, members of his own party questioned his support for vaccines. At one point, Cassidy, a physician, read an email from a physician friend who said patients 65 and older need a prescription to get a COVID-19 shot.

“I would say effectively we are denying people vaccines,” Cassidy said.

“You’re wrong,” Kennedy responded.

In that same exchange, Cassidy asked Kennedy if he believed President Trump deserved a Nobel Prize for his administration’s work on Operation Warp Speed, the initiative that sped the development of the COVID-19 vaccine and treatments.

“Absolutely,” Kennedy said.

Cassidy said he was surprised at his answer because he believes Kennedy is trying to restrict access to the COVID-19 vaccine. He also expressed dismay at Kennedy’s decision to cancel $500 million in contracts to develop vaccines using mRNA technology, which Cassidy said was key to the operation.

Kennedy’s position on vaccines have reverberated beyond Capitol Hill.

Ahead of the hearing, more than 1,000 employees at the health agency and national health organizations called on Kennedy to resign. Seemingly in support of Kennedy’s direction, Florida announced plans to become the first state to end all vaccines mandated, including for schoolchildren. And three Democratic-led states — California, Washington and Oregon — have created an alliance to counter turmoil within the federal public health agency.

The states said the focus of their health alliance will be on ensuring the public has access to credible information about the safety and efficacy of vaccines.

Almost as if in a parallel universe, Kennedy told senators on Thursday that his goal was to achieve the same thing, after facing hours of criticism on his vaccine policies.

“I am not going to sign on to something if I can’t make it with scientific certainty,” he said. “It doesn’t mean I am antivax, it just means I am pro-science.”

Information, in the second Trump administration, is a currency of power and fear. Last week, Atty. Gen. Pam Bondi announced sweeping subpoenas targeting physicians and medical providers who offer care for transgender youth. The aim is not to initiate prosecutions: Indeed, the legal theories upon which such prosecutions might rest are tenuous at best.

By filing these investigative demands, the government plainly hopes to chill medical providers from offering expert care. This strategy can work even if, at the end of the day, the government’s threats are hollow as a matter of law. The White House’s plainly unconstitutional attacks on law firms, for example, have substantially worked — even though the minority of firms to challenge the orders rapidly won relief.

Fortunately, the legal system is not powerless in the face of such overreaching: Federal district courts have the authority, and the obligation, to recognize that patient-physician dealings are akin to attorney-client and spousal discussions. Both of the latter benefit from judicially created privileges — or legal shields that individuals can invoke against the state’s probing. At a moment when not just gender medicine but also reproductive care more generally is in peril, federal courts can and should step in and shield intimately private medical data as well.

We suspect that many people believe that what they tell their doctors is already private. They’re right, but only sort of. There’s a federal law called HIPAA that limits what your doctor can do with the information. It says that your doctor can’t, for instance, sell your medical records to the newspaper. In 2024, the Department of Health and Human Services also issued a HIPAA “privacy rule” that heightened protections for reproductive healthcare information. (Last month, a federal district court in Texas declared the rule unconstitutional — so its future is uncertain.)

Even with the privacy rule, however, HIPAA hides a gaping hole: It allows disclosures “required by law.” And the law explicitly permits disclosures pursuant to subpoenas of all kinds — judicial, grand jury or administrative — including those issued by Bondi. So if the Justice Department subpoenas your intimate and sensitive healthcare information, HIPAA won’t stop that.

In previous academic work, we’ve urged Congress and state legislatures to fill this gap. Blue states have acted to curtail cooperation with other states — but there’s a limit to what states can do when the federal government demands information.

Yet there remains one entity that can, and should, act immediately to shield reproductive healthcare information: the same federal district courts that have been at the forefront of pushing back on the Trump administration’s many illegal and constitutional actions. We think federal courts should extend existing “privileges,” as evidentiary shields are called, to encompass both records of gender-affirming and transgender medical care, and also records of reproductive care more generally.

A privilege not only bars protected information from being admitted into evidence at trial, but also blocks subpoenas, warrants and other court orders.

Federal district courts have a general power to create privileges, and they often do so when people already have a reasonable expectation that their conversations will not be disclosed. Most people have heard of the attorney-client privilege, which means that you can confide in your lawyer without worrying that what you say will end up being used in court. But privileges can apply to all sorts of other information as well: what you tell your spouse, what you tell your spiritual advisor and even highway safety data that your state reports to the feds in exchange for funding. Existing court-created privileges protect not only attorney-client but also executive-branch communications.

Federal courts should recognize a privilege for doctor-patient communications in gender and reproductive medicine. They could do so if one of the physicians subpoenaed recently goes to court. The protection they seek is simply an extension of widely recognized legal principles and expectations of privacy. Federal courts already have recognized a privilege for patient communications with psychotherapists, and many state courts also offer privilege protections for broader doctor-patient communications.

Importantly, it is the job of federal district courts to craft evidence-related rules. After all, these are the judges who are closest to litigants and the mechanics of evidence protection. District courts don’t need to wait around for the Supreme Court to act on this, because the Federal Rules of Evidence left privileges to common law development in the district courts. And under the well-established balancing test that lower federal courts should follow when they create new privileges, we think our proposed privilege is an easy case: It serves a public purpose and protects what should be recognized as a valued interest of “transcendent importance” — privacy for our most intimate medical care.

The case for recognizing the privilege in respect to the recent subpoenas is especially strong: The attorney general is seeking to chill physicians from providing advice that is protected by the 1st Amendment and care that is guaranteed by federal statutes. Such subpoenas are directly at odds with the rule of law.

Today, it is trans kids; tomorrow, it will be people seeking an abortion or contraception. We should not have to wait for the federal government to go this far before our privacy gets the shield that it deserves.

Aziz Huq and Rebecca Wexler are professors of law at the University of Chicago Law School and Columbia Law School, respectively.