U.S. Asks Judge to Lift His Ban on Pentagon's Anthrax Vaccination Program

[HARDCORE]

This is a stitch. As stated before from Mark Zaid, it can't be unlawful for the 6; and lawful for the rest.




U.S. Asks Judge to Lift His Ban on Pentagon's Anthrax Vaccination Program
By THOM SHANKER
Published: December 27, 2003

WASHINGTON, Dec. 26 ? The Justice Department has asked a federal district judge here to withdraw his preliminary injunction halting the military's mandatory anthrax vaccination program, or at least limit his ruling to the six plaintiffs whose suit prompted it.

The department's motion is the Bush administration's first legal response to the injunction, issued on Monday and barring the Pentagon from "inoculating service members without their consent."

The motion, which promises to be just one step in a long court battle, seeks clarification of whether the injunction applies solely to the six plaintiffs, each identified only as John Doe. If not, it asks that the judge reconsider, arguing that the suit was not filed on behalf of all military personnel.

"Plaintiffs never pursued this case as a class action," says the motion, which states later, "An award of preliminary injunctive relief to anyone other than the six Doe plaintiffs before the court would be wholly without justification."

The document is dated Wednesday, and a copy of it was provided by Mark S. Zaid, one of the plaintiffs' lawyers.

Most federal offices in Washington were closed Friday, and the Justice Department spokesman on duty said he had no comment about the motion.

Mr. Zaid said the motion was "understandable from the legal standpoint" but was "completely absurd from a policy standpoint."

He acknowledged that the plaintiffs' case had not been filed as a class action but said it had been "styled on behalf of all similarly situated persons" in the armed forces and among Pentagon civilians required to take the vaccine.

One option now, he said, would be to try to have the suit certified as a class action. Or, he said, it may be refiled, "adding in every single person's name who doesn't want to take the shot."

"The vaccine as being used is experimental in nature and therefore unlawful unless informed consent is given," Mr. Zaid said. "So to argue that this decision should only apply to those six individuals does a real injustice."

The Pentagon announced Tuesday night that it was at least temporarily halting its program of administering the anthrax vaccine, until the legal situation was clarified. Even so, Pentagon officials continue to defend the vaccine as safe, effective and necessary for national security.

"This is an important force-protection program," Bryan Whitman, the deputy Pentagon spokesman, said Friday. "The safety and efficacy of this vaccine has been looked at by medical experts, both inside and outside the United States government. They have agreed that this is an effective vaccine against all forms of anthrax."

In issuing the injunction, the judge, Emmet G. Sullivan, said the vaccine used in the Pentagon's mandatory program had been approved by the Food and Drug Administration to protect against skin exposure to anthrax but not against anthrax that is inhaled, a far greater threat on the modern battlefield. Defense Department officials countered by saying the F.D.A. had provided guidance that allowed the Pentagon to conclude that the vaccine was effective against inhaled anthrax.

Lawyers for the plaintiffs say nearly 500 active-duty members of the armed services have refused the vaccine, with close to 200 court-martialed as a result. From 500 to 1,000 pilots and flight personnel have left the Air National Guard or Reserves rather than take the vaccine, the lawyers say.

Pentagon officials say that although several hundred military or civilian personnel declined the vaccine in the initial years after the program was begun in 1998, only 10 have refused it since June 2002, when the program was accelerated after supply problems had been resolved.

Since then, 600,000 to 700,000 military or Pentagon civilian personnel have received the vaccine, Defense Department officials say.