Vaccine litigation lingers after lifting of military mandate

By KEVIN McGILL
Associated Press

NEW ORLEANS (AP) — Federal appeals court judges closely questioned a Biden administration attorney Monday on the consequences military personnel might face for refusing COVID-19 vaccinations, even though Biden’s vaccine mandate for military personnel has been rescinded.

Lawyers for a group of Navy SEALS and other Navy personnel who refuse to be vaccinated for religious reasons told a 5th U.S. Circuit Court of Appeals panel that federal court injunctions against the mandate are still needed, in part because decisions on deployments and assignments can still be made based on vaccination status.

“Is there any assurance on the record, that there will be no deployment decisions based on vaccination?” Judge James Ho, one of three judges hearing the case asked Department of Justice lawyer Casen Ross.

Ross said such questions were speculative and not at issue in the case before the court. Ho and Judge Kyle Duncan noted that the administration had only reluctantly ended the military mandate after December congressional action, but Ross assured the panel that there are no plans to bring back the requirement.

“Given the prevailing public health guidelines and the state of the virus, there is currently no intention to require universal vaccination of all service members,” Ross said.

The Pentagon formally dropped the requirement in January following a December vote in Congress to end the mandate. However, vaccine opponents note that commanders can still make decisions on how and whether to deploy unvaccinated troops, under a memo signed last month by Defense Secretary Lloyd Austin.

Military leaders have long argued that to maintain unit health and troop readiness, troops have for decades been required to get as many as 17 vaccines, particularly those who are deploying overseas.

Attorneys for the unvaccinated Navy personnel argued in briefs to the 5th Circuit that Austin’s memo and other Defense Department actions show that the Navy still intends to treat unvaccinated personnel “like second-class citizens because of their religious beliefs.”

Government lawyers argue the policy is in line with “well-established principles of judicial noninterference with core military decision making,” in their briefs.

The Navy SEALS filed their lawsuit in November of 2021, describing what they saw as a cumbersome 50-step process to obtain religious exemptions for the COVID-19 vaccine. Their lawyers have called a “sham” with applications being “categorically denied.”

The Defense Department denied the process was onerous and said the Navy has a compelling interest in requiring vaccinations for personnel who often operate for long periods in “confined spaces that are ripe breeding grounds for respiratory illnesses.”

On Monday, Heather Hacker, an attorney for the Navy personnel, said the situation could be seen as worse now for them now that the older mandate policy has been rescinded, because current policy does not provide for a sailor’s religious objections to the vaccine to be considered when deployment or assignment decisions are made.

“We’re going from a 50-step process to a zero-step process?” Duncan asked.

“Exactly, your honor,” Hacker replied.

In January of last year, a federal judge in Texas barred the Navy from taking any action against the Navy plaintiffs for being unvaccinated. A 5th Circuit panel rejected the Biden administration’s request to block the judge’s order.

But the administration won at least a temporary, partial victory last March when the Supreme Court approved a “partial stay.” The order allowed the Navy to consider the sailors’ vaccination status in making decisions on deployment, assignment and other operational issues while the case plays out.

There was no indication when the judges would rule. Monday’s arguments were heard by Duncan and Ho, both nominated to the 5th Circuit by President Donald Trump, and James Graves, a nominee of President Barack Obama.