Judge Prevents Air Force From Penalizing Airmen Who Refused Vaccine

Topline

A federal judge Thursday temporarily blocked the Air Force from penalizing a group of service members who are seeking a religious exemption to otherwise mandatory Covid-19 vaccination, in the latest conflict pitting judicial authority against the authority of military commanders.

U.S. Air Force Sgt. Gerald Allen receives a dose of the Moderna Covid-19 vaccine at Osan Air Base on … [+] December 29, 2020 in Pyeongtaek, South Korea.

United States Forces Korea via Getty Images

Key Facts

Ohio Southern District Court Judge Matthew McFarland, overseeing the lawsuit, allowed an injunction temporarily preventing the Air Force from taking adverse action against a group of 18 service members, who in February filed a lawsuit against various Air Force officials after the service members’ vaccine exemption applications were denied.

At a prior hearing, three of the 18 plaintiffs said they did not wish to be vaccinated because some Covid vaccines were developed using cells grown from aborted fetal tissue, with plaintiff Lt. Col. Edward Joseph Stapanon III claiming that receiving a vaccine connected to abortion would violate his Catholic faith, an argument advanced by some U.S. Catholic clergy but rejected by the Vatican.

In his order Thursday, McFarland cast the issue principally in terms of religious freedom, drawing parallels to pacifist religious groups whose right to follow their conscience by refusing conscription was upheld even when the U.S. was in urgent need of soldiers, and criticized the Air Force for putting the plaintiffs “in the unconscionable position of choosing between their faith in an eternal God and their career in the United States military.”

McFarland prohibited the Air Force from taking any action against the 18 service members for their refusal to be vaccinated until the lawsuit was resolved, in effect interrupting the Air Force’s ability to enforce its own vaccination policy, though the injunction does not affect the Air Force’s ability to make operational judgments regarding the 18 service members, such as deciding not to deploy them.

No additional hearings in the case have been scheduled with the Ohio Southern District Court so far.

The Air Force did not immediately respond to a request for comment regarding whether they planned to appeal Thursday’s decision.

Key Background

In August, Secretary of Defense Lloyd Austin announced that Covid vaccination would be mandatory for all service members to protect the readiness of the armed forces by discouraging the spread of disease. The Department of Defense’s process for evaluating religious exemption requests weighs whether it is possible to accommodate a service member’s religious practices as non-restrictively as possible while also maintaining the government’s interest in keeping its military forces mission-ready. However, Air Force Surgeon General Lt. Gen. Robert I. Miller determined that there were no less restrictive means available to ensure the military’s readiness than vaccinating the plaintiffs. At least some of the plaintiffs’ applications were rejected on the grounds that approving them would detract from the force’s readiness by putting other service members at risk of disease. Some of the exemptions that have been granted were found to have “no impact to missionary readiness,” though the plaintiffs claim that the small number of requests so far granted include only airmen nearing the end of their service. In his order Thursday, McFarland pointed out that the Air Force had approved only 23 religious exemption requests of 4,403 requests adjudicated, describing this roughly .17% percent approval rate as “shameful” and echoing criticisms made of the Navy’s religious exemption application process, which has also rejected an overwhelming majority of requests.

Tangent

Lawsuits filed by groups of service members who claim their religious liberty has been violated have forced courts to examine how far they can go to regulate military commanders’ decisions regarding their own service members. January, U.S. District Judge Reed O’Connor ruled that the Navy could not restrict from deployment a group of SEALs who had refused vaccination on religious grounds, a decision Austin described as “an extraordinary and unprecedented intrusion into core military affairs.” March 25, the Supreme Court stayed O’Connor’s decision, with Justice Brett Kavanaugh pointing out that courts usually do not infringe on the president’s authority as commander-in-chief, and that judgments about operating a military force are generally better suited to military professionals than to judges. Three days later, O’Connor issued a new order that again prohibited the Navy from making deployment decisions on the basis of the plaintiffs’ vaccination status.

What To Watch For

Delayed by differences of opinion between state and federal authorities and by the expansion of the case into a class action including over 4,095 service members, the Navy lawsuit has taken a complex path through the courts, indicating the Air Force lawsuit may follow a similarly lengthy process. If the Air Force lawsuit reaches the Supreme Court, it’s possible that the court may favor the Air Force’s right to penalize the dissenting service members, given that, in the case of the Navy Lawsuit, the court emphasized its unwillingness to unduly interfere in military decision-making.

Contra

Relatively few Air Force service members have refused Covid vaccination. As of March 29, 98.1% of active duty service members were fully vaccinated, and 96.5% of all the branch’s forces—including reservists and Air National Guard members—were fully vaccinated.