What Shot Do the Legal Challenges to the Military's COVID-19 Vaccine Mandate Have?

Sailors prepare COVID-19 booster shots.
Sailors assigned to Navy Medicine Readiness and Training Command (NMRTC) San Diego and USS Abraham Lincoln prepare COVID-19 booster shots aboard the ship Dec. 28, 2021. (U.S. Navy photo by Mass Communication Specialist 2nd Class Jacob Woitzel)

The military has discharged more than 700 service members as of Wednesday for refusal to get a COVID-19 vaccine, with thousands still in the process of requesting waivers and appealing denials.

Meanwhile, several court cases have been winding their way through the courts with the goal of overturning the mandate.

Two cases -- one in Texas and the other in Florida -- have achieved some success in the form of injunctions, limited freezes on the military's efforts to remove those who have refused vaccination from the ranks. Another case, filed Tuesday, seeks to emulate their results. The latest case is also the first to be launched under an officer's name, not anonymously.

Read Next: Air Force Grants First Religious Exemptions for COVID-19 Vaccine, But Won't Provide Details

What these early pauses mean for the military's mandate, however, is less clear. Mark Zaid, a Washington, D.C.-based attorney who fought and prevailed over the military's last major vaccine mandate for anthrax, says that the current cases raise legitimate questions but are not likely to produce the sweeping results some hoping to escape the mandate would like.

Early in January, a federal judge in Texas ordered the Navy and Defense Department to halt disciplinary procedures against 35 members of the service's special operations community for refusing to take a COVID-19 vaccine. Last Wednesday, a federal judge in Florida stopped the Navy from removing a commander and a Marine lieutenant colonel from their jobs over their refusal as well.

Both decisions impact a very small number of service members. The Texas order applies only to the 35 special operators, while the Florida order covers just two officers out of a defendant list of many. The latter case aims to be a class-action lawsuit and has already signed on more than 30 unnamed officers and enlisted personnel from all the military branches, as well as civilian contractors.

Part of the success, according to Zaid, is tied to lawyers picking courts more likely to be sympathetic to their cases.

"It's clearly forum shopping. … I don't think it's surprising that stays were obtained in very conservative districts on religious issues," he said.

Lawyers justified filing one case in Texas because one of the 35 defendants was stationed in Fort Worth, court records show. The Navy has only one major facility in that city -- a reserve naval air station. Meanwhile, SEAL teams are stationed predominantly in either Coronado, California, or Dam Neck, Virginia.

The main issue that both the lawsuits and Zaid note is the inconsistency of the Navy's policy on exemptions.

"Those who receive religious accommodations are still 'medically disqualified.' ... By contrast, those receiving medical accommodations are not medically disqualified -- they receive equal status as those who are vaccinated," the judge wrote in his injunction in the Texas case.

Adding to the Navy's legal woes is a religious exemption process that both courts described as systematic and meaningless.

According to the Texas case, the Navy uses a six-phase, 50-step process. The documents say that, according to Navy guidance, the first step for an exemption filing is for an administrator to "update a prepared disapproval template with the requester's name and rank," suggesting a likely outcome to the request.

The ruling goes on to note that it's not until step 35 that the administrator is finally told to read through the religious accommodation request.

"At that point, the disapproval letter has already been written, the religious accommodation request and related documents has already been reviewed by several offices, the disapproval has already been packaged with similar requests, and an internal memo has already been drafted requesting that Vice Admiral [John] Nowell disapprove the religious accommodation request," the ruling read.

"It doesn't seem to be a legitimate process, or fair … and that's really undermining the DoD," Zaid said.

"Based on this boilerplate rejection, [the Navy SEALs in the Texas case] believe that this process is 'pre-determined' and sidesteps the individualized review required by law," the judge in Texas wrote.

Meanwhile, in Florida, the judge said that "the record creates a strong inference that the services are discriminatorily and systematically denying religious exemptions without a meaningful and fair hearing."

A case filed by a vaccine-refusing Navy captain, James Lembo, on Tuesday also alleged the service's "religious accommodation request and appeal processes were illusory and futile because VADM Nowell and ADM Gilday intended to deny every request and every appeal."

The Navy, when asked about these cases, told Military.com that it does not comment on pending litigation.

The various branches have been very tight-lipped about publicly releasing any details about the exemption process. The details about the first three exemptions granted by the Marine Corps, for example, came from a congressional office asking questions of the branch and releasing the reply to the media.

Meanwhile, the Air Force confirmed its first exemptions in a court filing with the Florida case, not to the public.

Zaid also noted that many vaccine refusers face an uphill battle because they have all been serving under other vaccination mandates until now.

A common issue cited by refusers is that the use of fetal cells in the creation of the vaccine renders them offensive. Lembo, in his request, calls the vaccines "morally compromised." Yet, the measles, mumps and rubella, or MMR, vaccine is standard for military service and is made by growing the rubella virus inside fetal cells.

Meanwhile, the Pfizer and Moderna COVID-19 vaccines do not need fetal cell lines for development or production but were tested on fetal cells to ensure their efficacy. Only the Johnson & Johnson vaccine is made using fetal cells.

"You can't just pick this vaccine and all of a sudden decide you're religious," Zaid said.

"That was a big issue back with [anthrax] as it is now."

The Lembo case, which is unique since it is filed under his name and thus includes all of his exemption request filings, does incorporate a memo from a chaplain that notes his "religious conviction has deepened substantially only in the last several years and did not guide his medical decisions earlier in his career."

Although all three cases seem poised to challenge the Pentagon's vaccine mandate for COVID-19, Zaid doesn't hold out much hope that they will get to that point.

"It's so few people involved … it wouldn't surprise me, at the end of the day, that something is worked out so that these cases don't continue and these guys don't take the shots," he said.

"Maybe they're just put somewhere else in sort of a compromise."

But the lawyer who brought down the anthrax mandate is also quick to point out that he "won because the licensing was done so poorly."

"We never got anywhere, legally, on the safety, efficacy or necessity issues because, quite frankly, those are policy arguments and the court wasn't going to interfere with or supersede what DoD believed," he explained.

"The other huge difference between the anthrax vaccine and the COVID vaccine is we did not have ideology in the equation -- it was not political," Zaid said.

Publicly, Zaid has come out in support of the COVID-19 mandate. To him, a good goal for the plaintiffs in these cases should not be abolishing the mandate but rather to "force the Navy to refine or reform their religious exemption policies to make it actually legit."

Zaid suggested a good approach would be to take adjudication of requests, at least for high-profile policies like this one, "outside the military."

In his experience, it "doesn't matter if it's vaccines, mandates, whatever … [officers are] not willing to overrule higher-ranking officers."

-- Konstantin Toropin can be reached at konstantin.toropin@military.com. Follow him on Twitter @ktoropin.

Related: Inside the Secretive Networks of Military COVID-19 Vaccine Refusers

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