Judge Temporarily Blocks Vaccine Mandate for Air Force Officer Seeking Religious Exemption

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Airman receives a flu vaccine at Joint Base McGuire-Dix-Lakehurst.
A U.S. Air Force airman receives a flu vaccine at the 108th Wing on Joint Base McGuire-Dix-Lakehurst, N.J., Nov. 6, 2021. (U.S. Air National Guard photo by Master Sgt. Matt Hecht)

A federal judge in Georgia on Tuesday blocked the Air Force from requiring an officer to get the COVID-19 vaccine, marking the first case where a court successfully blocked the mandate for an airman.

The airman, a woman who has served in the military for 25 years and works at Robins Air Force Base, Georgia, was not named in court documents. The officer's request for a religious exemption, based on the idea that some vaccine testing was done on fetal cell lines, was denied late last year.

In January, the Air Force officer filed a lawsuit against the service in the United States Court for the Middle District of Georgia. She is being represented by attorneys from the Thomas More Society, a conservative law firm based in Chicago.

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Judge Tilman E. Self granted a preliminary injunction, temporarily stopping the Air Force from enforcing the mandate on the officer, writing in the court order that the airman's religious liberty should be paramount.

"All Americans, especially the Court, want our country to maintain a military force that is powerful enough to thoroughly destroy any enemy who dares to challenge it," Self wrote. "However, we also want a military force strong enough to respect and protect its service members' constitutional and statutory religious rights. This ruling ensures our armed services continue to accomplish both."

The injunction covers only the Air Force officer and does not grant a widespread injunction for other airmen or service members.

The Georgia preliminary injunction follows at least two high-profile cases filed in court districts within conservative-leaning states .

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.

Another federal judge in Florida stopped the Navy from removing a commander and a Marine lieutenant colonel from their jobs earlier this month. In that court filing, the Air Force confirmed it had granted its first set of religious exemptions, before announcing them publicly several days later.

Mark Zaid, a Washington, D.C.-based attorney who fought and prevailed over the military's last major vaccine mandate for anthrax, told Military.com last week that it's likely many of these cases will be settled between the respective service branches and the plantiffs.

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

News of the airman's temporary victory comes after the Air Force granted its first handful of religious exemptions last week and as other court cases file in for individual injunctions.

As of Feb. 14, the Air Force had administratively separated 160 active-duty airmen for declining to get inoculated, while 96% of the service had been fully vaccinated against COVID-19.

Additionally, the force has approved eight religious exemptions and one appeal has been successful, according to the latest Air Force data.

It's not yet clear whether any of these cases looking to block the implementation of the COVID-19 vaccine mandate will change the military's policy.

Refusers, such as the Georgia Air Force officer, state that the use of fetal cell lines in the creation of the vaccine is a point of contention for those with strict religious stances against abortion.

The Pfizer and Moderna COVID-19 vaccines do not need fetal cell lines for development or production but were tested on fetal cell lines replicated from an aborted fetus in the 1970s to ensure their efficacy. Only the Johnson & Johnson vaccine is made using fetal cell lines.

Notably, the measles, mumps and rubella, or MMR, vaccine is standard for military service and is made by growing the rubella virus inside fetal cells.

Lawyers for the Thomas More Society said they believe their lawsuit may have put pressure on the Air Force to start approving religious exemptions.

"The Air Force had granted over 1,500 medical exemptions by the time we filed this lawsuit, but not a single religious exemption -- not one," Stephen Crampton, senior counsel with the Thomas More Society, said in a press release. "After we filed, it suddenly decided to start granting or claiming to grant religious exemptions, albeit only a handful."

The law firm said in the press release that the Air Force officer is not a risk to other airmen because "she has already had COVID-19 and twice tested positive for the antibodies in the year following her recovery" and also follows social distancing measures. Research has shown that, while natural immunity does provide some protection against COVID-19 infection, vaccination reduces the risk of contracting the illness for both those who have gotten the coronavirus and those who haven't.

After the Air Force announced the first batch of religious exemptions, the service did not clarify whether those approved were already on their way out of the ranks.

"The Department of the Air Force determined the service members' accommodations could be supported with no impact to mission readiness," spokeswoman Ann Stefanek said in an emailed statement.

The Marine Corps made headlines last month when it became the first military branch to grant three religious exemptions, but all three went to Marines who were functionally no longer serving.

-- Konstantin Toropin contributed to this report. Thomas Novelly can be reached at thomas.novelly@military.com. Follow him on Twitter @TomNovelly.

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

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