This is a question that is yet to be answered, but tens of thousands of service members across the world want to know. Of course, the answer is “It depends.” For many service members, this is very concerning. There have been many controversial vaccines and experimental medications forced on our nation’s bravest in the past. Many have led to illnesses and unforeseen medical conditions that have affected readiness and led to millions being paid out in service-connected compensation to our nation’s veterans.
This is not the first time we have been in this situation. The most recent example is the experimental Anthrax vaccine, which was challenged after the Department of Defense unilaterally forced the vaccine on service members. I remember well the unusual lump that lasted far longer than I expected when the vaccine, which I did not consent to, was forced on me prior to a deployment to Iraq. I also remember when the Government was forced to require consent after the Court decided in John Doe v. Rumsfeld that the Department of Defense could not administer the vaccine without consent given the absence of a Presidential Waiver. Doing so violated 10 U.S.C. 1107, Presidential Executive Order 13139, and DoD Directive 6200.2. These protections were put into place following the negative effects that many service members experienced after receiving experimental vaccines before or during Operation Desert Storm around 1991.
Another example of the Government recklessly forcing these vaccines or treatments on service members was the use of Chloroquine prior to deployments to help combat potential malaria exposure. Once again, the treatment itself proved to be more damaging than the likely damage that could possibly have been caused by malaria. This medication has been shown to cause mental health issues, including PTSD, and many veterans are receiving disability compensation after being forced to take this medication.
The Presidential Waiver
Absent FDA approval or a Presidential Waiver, the DoD may never implement a requirement that service members take the vaccine regardless of consent. History has shown us that the DoD lacks the legal authority to do so and that a Federal Court would likely grant an injunction to stop such a policy. While the Federal Government attempts to hide behind the Feres Doctrine any time it is sued, the Court would almost definitely find appropriate standing and jurisdiction and would likely grant injunctive relief (force the DoD to stop). Unfortunately for many healthy service members hoping to avoid an experimental vaccine with many negative side effects, the current president will likely provide a Presidential Waiver.
What Can I Do?
Those hoping to avoid the vaccine may seek a waiver for religious or medical reasons. Service members have sought religious waivers in the past after learning that many vaccines contain aborted fetal tissue. Others may request a waiver for medical reasons if they are able to get a medical doctor to confirm the existence of a medical condition that could worsen after taking the vaccine. Our firm has sought and obtained many of these waivers prior to COVID, and we expect that we will continue to do so in the future.
There will likely be a court battle over this issue as well. Without the Presidential Waiver, the DoD would have no leg to stand on. If a Presidential Waiver is provided, then the Court would have to decide a wholly new issue of whether an experimental and improperly tested vaccine with many known side effects may be forced on arguably the healthiest portion of our nation’s population.
What if I Refuse the Vaccine?
Unfortunately, the very service members who make daily sacrifices to preserve our nation’s freedoms might soon find themselves stripped of the freedom to choose for themselves. There are a few possibilities if you choose to refuse this experimental vaccine. The most likely outcome is that you would be administratively separated from the military regardless of your rank or years in service. It is possible that service members may be criminally prosecuted for failing to take the vaccine, but the hope is that commanders will be more reasonable and will take the administrative approach. We are gearing up for the fight ahead and will do everything we can to support the service member’s right to choose.
As a Managing Partner at Tully Rinckey PLLC, a former First Sergeant in the United States Army Reserve, and a combat veteran, Anthony Kuhn focuses much of his time on the representation of military personnel, federal employees, and federal agents. He can be reached at firstname.lastname@example.org or at (716) 439-4700.