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Tuesday, December 23, 2003 - Page updated at 12:00 A.M.

Military can't require anthrax shots

By The Washington Post and The Associated Press

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WASHINGTON — A federal judge in Washington yesterday ordered the Pentagon to stop administering an anthrax vaccine to U.S. service members without their consent, ruling that defense officials cannot require troops to "serve as guinea pigs for experimental drugs."

In blocking mandatory anthrax inoculations until a full trial can be held on the matter, U.S. District Court Judge Emmet Sullivan agreed with the contention by six plaintiffs in a class-action suit that the anthrax vaccine is an experimental drug "being used for an unapproved purpose" — namely, for protection against airborne anthrax as well as exposure through the skin. As such, he ruled, it cannot under federal law be administered to service members on a mandatory basis.

Sullivan said he was not persuaded by Pentagon attorneys' arguments that administering the vaccine on a voluntary basis would interfere with military operations in Iraq and elsewhere. But if they believe that is the case, the judge said, federal law gives them the option of obtaining a presidential waiver of service members' right to informed consent. Such a waiver, Sullivan wrote, "would be an expeditious end to this controversy."

Anthrax is a naturally occurring bacterium that typically affects sheep and cattle. When inhaled, dry anthrax spores can be deadly to humans. The anthrax vaccine has been approved since the 1970s and used regularly to protect veterinarians and scientists working with the bacterium.

Believing Iraq and other nations had produced anthrax weapons, the Clinton administration launched the immunization program in 1998 with the intention of requiring all 2.4 million military personnel to receive the vaccine.

More than 800,000 U.S. troops have received it since 1998. Many of them received the series of six injections last year, before deploying to fight the war in Iraq.

While the government does not recommend vaccinating the general public, it says the vaccine overall is very safe, with rare severe side effects such as dangerous allergic reactions. But hundreds of military personnel have refused the shots, worried they could be connected to complaints of chronic fatigue, memory loss and other problems. Many of them have been court-martialed and forced out of the military. This month an Ohio National Guard soldier was court-martialed and sentenced to 40 days in jail for twice refusing to take the vaccine.

A Pentagon spokesman had no immediate comment on Sullivan's ruling and would not say whether those who had been disciplined could seek to have their cases reconsidered. Charles Miller, a spokesman for the Justice Department, which represents the Pentagon in the case, said: "No determination has been made as to what our next step will be. In that it is a preliminary injunction, there is no finality to this ruling at this stage."

Mark Zaid, a Washington lawyer representing the plaintiffs, said there is "no significant evidence that this vaccine is safe or effective against weaponized anthrax. It is simply an experimental vaccine."


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