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Can the Department of Defense Require Servicemembers to Get the COVID Vaccine?

On December 11, 2020, the U.S. Food and Drug Administration (FDA) issued an emergency use authorization for the first COVID vaccine for all Americans 16 and older. Shortly after this approval, the Department of Defense (DoD) began vaccinating servicemembers on a voluntary basis. It has recently been reported that the DoD will soon mandate vaccination for all servicemembers. Many serving have questions about the legality of such a mandate.

In the 1990s, the DoD required servicemembers to be vaccinated against anthrax. Several servicemembers refused the anthrax vaccine. Many were administratively disciplined and separated. Some were charged at court-martial with disobeying a lawful order. In 1999, the President issued Executive Order 13,139, establishing that the DoD has to get informed consent from servicemembers before giving them any investigational new drug unless the President determines that obtaining such consent is not in the best interests of the servicemember or not in the interests of national security. The President never issued such a waiver for the anthrax vaccine. The prosecuted and separated servicemembers argued that the anthrax vaccine was an investigational new drug and therefore the order to receive such a vaccine was unlawful without either their informed consent or a Presidential waiver.

Both military courts and federal courts weighed in on the issue. Initially, federal courts found that the vaccine had not been approved for its intended use to combat inhaled anthrax and prevented the DoD from requiring servicemembers to be vaccinated without their informed consent until either the FDA gave such an approval or the President waived the informed consent rule. Ultimately, the FDA approved the anthrax vaccine for use on inhaled anthrax and the federal injunction against required vaccines was removed. The military looked more specifically at the offense of disobeying a lawful order and found the order to receive the vaccine lawful.

The news reports regarding the impending vaccine mandate suggest that, in contrast to how the anthrax vaccine order was handled, the President will issue a waiver of informed consent in conjunction with ordering that all servicemembers receive the vaccine. If the President does issue a waiver that meets the requirements of Executive Order 13,139, the general vaccination requirement will likely withstand litigation in federal court. However, individual servicemembers may claim medical or religious exemptions to vaccination that will likely lead to litigation in federal and military courts. Medical exemptions could be difficult to substantiate in a generally young and healthy military population. Most litigation will probably surround the application of religious freedom rights and the denial of religious exemptions. In order to establish the basis for a religious exemption, a servicemember must show that the vaccination requirement places a substantial burden on a sincerely held religious belief.

To answer the larger question, it appears that yes, the President and the DoD can order servicemembers to get the vaccine, so long as the President issues the informed consent waiver as well. The individual question, as to whether the DoD can order a specific servicemember to get the vaccine is not as clear. It depends on the medical status and religious beliefs of that servicemember and whether they qualify for an exemption from the requirement. If you or a loved one is facing administrative action or court-martial over this issue, call Bill Cassara at (706) 445-2943 for a free consultation. 

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