Dunlap on Mandatory Vaccines

2/4/2021

"Given reports that DoD is making COVID vaccinations voluntary for active duty personnel, I'd be interested in a discussion by CAAFlog experts about the state of the law re: mandating vaccinations.

In my view they can be mandated based on Washington (https://www.armfor.uscourts.gov/newcaaf/opinions/2002Term/01-0658.pdf) and - really probably more important - the Supreme Court's opinion in Jacobson (https://supreme.justia.com/cases/federal/us/197/11/).

However, I'd be grateful to know what CAAFloggers think!

Thanks, Charlie"

Editor's note: I agree with Prof. Dunlap that Jacobson controls. If vaccines can be mandatory for civilians, they can certainly be mandatory for military personnel! The *only* possible way around, I think, would be an invocation of RFRA--somehow tying in your refusal to take a vaccine with a religious belief. Here is a nice student note on RFRA's application to vaccines.

14 Comments

William Cassara

2/4/2021 12:53:27 pm

Weren't there service members court-martialed for refusing to take the pre-deployment vaccines? I seem to recall yes, and the convictions being upheld.

Richard Dave Rosen link

2/4/2021 02:12:41 pm

I believe you are correct with respect to members of the military. See United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002) (rejecting duress defense to order to take anthrax vaccine); United States v. Kinsala, 64 M.J. 50 (C.A.A.F. 2006) (upholding lawful of order to take anthrax vaccine); U.S. v. Rose, 64 M.J. 56 (C.A.A.F. 2006) (same); United States v. Schwartz, 61 M.J. 567 (N.M.C.C.A. 2005) (relying in part on Jacobson in upholding order to take anthrax vaccine). With respect to RFRA, the order is certainly defensible as furthering a compelling government interest to keep our service members healthy and deployable (particularly given the federal courts' deference to the military), and is narrowly tailored to achieve that interest (unless there is some alternative means of protecting service members from COVID). I assume that if a service member has a medical condition that would make the vaccine unsafe, he or she would be excused from receiving the vaccine.

William Cassara

2/4/2021 02:49:45 pm

Thanks Rick. Hope all is well.

Richard Dave Rosen link

2/4/2021 02:55:23 pm

Getting old, but hanging in there.

Brian K

2/4/2021 02:25:05 pm

The COVID vaccines are investigational new drugs (unlike the failed “off label” use defenses in the Anthrax cases). 10 USC 1107a would seem to facially answer the mandatory vaccination question. It would require an Executive Order to over-ride the informed consent mandate. But, if an EO were to issue, then I think traditional lawful order jurisprudence would apply.

Richard Dave Rosen link

2/4/2021 02:38:45 pm

This is correct. Doe v. Rumsfeld, 297 F. Supp. 2d 119 (D.D.C. 2003); Doe v. Rumsfeld, 2005 WL 1124589 *1 (D.D.C. 2005).

Brian K

2/4/2021 02:38:18 pm

Correction to my earlier post. 10 USC 1107 applies to INDs. 10 USC 1107a applies to emergency use authorization (EUA) of unapproved products. In this case, COVID vaccines are both an IND, and being administered under EUA. Either way, only the President can waive the informed consent mandate. If he does, I renew my opinion that traditional lawfulness of an order jurisprudence would apply.

Mark H.

2/7/2021 12:25:04 am

This is what has been passed through my medical chain of command, and what we believe to be the working opinion of DHA so long as the vaccines remain under an EUA. It will become more interesting when host nations require vaccination of AD personnel prior to deployment. Running that down its logical path, deployments would become optional via refusing to get the vaccine. To date, pre-employment ROM and PCR testing has been sufficient in my area of view.

As to the coercion part, the additional duties (standing watch, etc.) have begun in some locations I am not affiliated with. Will be interesting to see how fitreps and such will be handled when AD is unable to fulfill their duties based on lack of vaccination. That said, its not like all commanders are lining up to get the vaccine. It seems to be divided on ideological grounds.

Rob Klant

2/5/2021 10:24:36 am

Agreed as to the authority to order vaccinations, subject to certain conditions.

Any thoughts on the limits of a commander's authority to create incentives/disincentives designed to influence a member's choice whether to submit to vaccination.

For example, relaxing of ROMs and other social controls for vaccinated members or relief/reassignment of unvaccinated members, based on their failure to meet "readiness" standards.

I'd guess certain incentives/disincentives could be so coercive in their effect that they could vitiate any "consent" the members give to vaccination, calling into question whether vaccination was in compliance with the emergency use authorization. While others would be viewed as a legitimate exercise of command authority to encourage vaccination.

Charlie Dunlap link

2/5/2021 12:43:58 pm

CAAFloggers, Thanks!!! I think this is another example of how this site can collaboratively help not just the military justice community, but the broader public. As I'll bet a lot of you know, knowledge about the system among many people - to include lawyers - is, shall I say, wanting. Thanks again!!! Charlie

Mark H.

2/7/2021 10:15:45 am

Quick thought regarding "mandatory" vaccination. In consenting someone for a medication or procedure, I counsel on the risks, benefits and alternatives. For a required vaccine, one of the benefits is that you are able to perform your job in the military. So its not like we are going to be stabbing anyone with a vaccine who declines the vaccine or any treatment. It is splitting hairs on one level, but on another, it is a condition for continued employment (setting aside Art. 92). Ironically, the Qanon viking guy is more than tangentially related to this debate as he seems to have been kicked out of the Navy for refusing the anthrax vaccine. https://taskandpurpose.com/news/qanon-shaman-guy-navy-veteran-vaccine/

Poster

2/17/2021 05:54:41 pm

And nobody is alone in there opinion either:
https://www.msn.com/en-us/news/world/one-third-of-us-military-refusing-covid-vaccine-pentagon/ar-BB1dM3HX?ocid=hplocalnews

Poster

2/17/2021 07:38:35 pm

Yikes. Sorry. ...their opinion...

Charlie Dunlap

2/19/2021 03:56:35 pm

Here's a post by a guest blogger on this topic: https://sites.duke.edu/lawfire/2021/02/18/can-troops-be-ordered-to-take-the-covid-vaccine-a-guest-post-analyzes-the-law/

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Dunlap on Mandatory Vaccines

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