COVID

A servicemember can refuse to take a COVID vaccine; at least for the moment.

10 U.S.C. 1107 requires that before an investigational drug can be given to military personnel, the servicemember must give informed consent. There is, however, a waiver provision which allows the President to order vaccination without informed consent.

·       When the person will participate in a “particular military operation,” and only if the President “in writing” determines the waiver is in “the national interest.”

The The meaning of "particular military operation" is an open question--does that restrict the waiver to those deploying, at-sea, or serving overseas, or can it be applied to everyone on active duty, and Reserves on drill, or NG when on Title 10 orders?

There are discussions ongoing that the President may exercise the waiver for the three COVID vaccines-Moderna, Pfizer, and Janssen. A waiver is required because the three vaccines are being used under an Emergency Use Authorization (EUA). That means they have not been finally vetted and cleared by the FDA. Once cleared, then the same effect should happen as happened with the DoD Anthrax vaccine in the 1990s.

As discussed in a recent JustSecurity article, COVID can impact the operational readiness of a military unit. You may remember several issues with Navy ships.

“Last year, the COVID-19 outbreak onboard the Theodore Roosevelt infected a quarter of the crew during a time of heightened tensions in the Indo-Pacific Command. Other outbreaks on Navy ships have raised further alarm bells that the high opt-out rate endangers national security and undermines readiness: the U.S. Navy’s Fifth Fleet in the Middle East experienced two COVID-19 outbreaks on a Navy ship in March, impacting operations. This appeared to be a short-lived crisis and the ships were quickly returned to normal operations. But another COVID break-out on a Navy vessel or operational unit could weigh in favor of determining that mandatory vaccination is “in the interests of national security.”

Military law allows ordering servicemembers to be vaccinated. Vaccination is a long-standing practice beginning with the pre-enlistment medical screening. Examples for required vaccinations include Yellow fever, Typhoid, Cholera, and Tetanus.

It has been a long time since the last contentious vaccination program—the Anthrax vaccine--has been front and center.

I had my Anthrax shot in 1991, as did those with me when deployed to OPERATION DESERT SHIELD/DESERT STORM (Gulf-I). As the staff judge advocate, I was not aware of anyone in the command refusing the shot. Keep in mind, we were worried about Saddam dropping a SCUD or two armed with biological agents like Anthrax.

Later DoD established a service-wide program of Anthrax vaccination. Remember there were several instances of people receiving Anthrax contaminated letters. Hundreds of servicemembers refused "and many paid dearly" with penalties ranging from NJP to court-martial. There are cases still in the records correction process. Todd South, Troops who refused anthrax vaccine paid a high price." Military Times, Jun. 17, 2021.

Servicemembers have been court-martialed for refusing the Anthrax shot, others have been punished under Article 15, UCMJ, and administratively separated.

In the 2012 case of United States v. Mixon, a Marine refused the shot based on religious reasons. He pleaded guilty to the charge so we don’t know if religious beliefs can be a successful challenge to an orders violation for refusing Anthrax—or COVID vaccination. For example, recently a servicemember got an exception to wear a beard because of his religious belief. Everyone else can be ordered to shave. What then about the vaccine? Time may tell if there is a balance between a religious liberty and a public health requirement that supercedes for servicemembers.

We know from a combination of cases that the military appeals courts hold that the Anthrax order was lawful. United States v. Washington, from the Court of Appeals for the Armed Forces, is one such case. Washington was reaffirmed in CAAF's case of United States v. Hayes, in 2012. Washington was sentenced to two months in the Brig and a Bad Conduct Discharge for his refusal. Washington discusses the reasons why vaccination can be compelled, including for Anthrax.

• The vaccination protects against use of Anthrax as a biological weapon.
• The requirement for an effective and cohesive fighting force in peacetime as well as war makes it necessary to protect individual health and also that of those in the same unit from life-threatening or disabling disease.

Everyone, including competent military defense lawyers know that orders are presumed lawful, and that disobedience is at the person's own peril. When the court decided Washington, the Air Force had imposed discipline actions in over 150 cases for Anthrax refusers.

Also noteworthy from Washington is that the traditional defenses of duress and necessity do not apply to an order's violation of refusing to be vaccinated. In Ponder v. Stone, the Navy court determined that the Anthrax vaccine was an FDA-licensed product and so an "informed consent" was not required for its taking. And in United States v. Kisala from the CAAF decided that the Anthrax vaccine was not an experimental drug requiring consent.

But, as noted, we don’t know if the answer will be the same for COVID vaccines. Should the President waive informed consent and a member refuse the COVID vaccine, some sort of disciplinary action or administrative discharge may be likely.

This is why you should talk with an experienced military defense lawyer before, not after, refusing a COVID vaccine.

As JustSecurity reports,

“Federal courts ruled against the DoD’s mandatory vaccination program in 2003 and 2004. Judge Sullivan of the D.C. District Court issued an injunction against the military mandatory anthrax vaccination program in 2004 in Doe v. Rumsfeld. He required informed consent or a presidential waiver until the Food and Drug Administration categorized the anthrax vaccine as “safe and effective.” This stopped the anthrax vaccine administration in its tracks. Shortly thereafter, the Food and Drug Administration classified the vaccine as “safe and effective,” and the injunction was lifted.”

We cannot be sure the same won’t happen again.