Pentagon can't require anthrax vaccine, US judge rules

WASHINGTON -- The Pentagon must stop requiring servicemen and women to take the anthrax vaccination against their will, unless President Bush signs a special order, a judge ruled yesterday.

Millions of shots have been given and hundreds of service members have been punished for refusing them since the mandatory vaccinations started in 1998.

The central question in the case is whether the drug is experimental or unapproved for use against inhalation anthrax, said Judge Emmet G. Sullivan of the US District Court in Washington.

The federal government approved the vaccine three decades ago. But plaintiffs in the class-action lawsuit -- unidentified active duty, National Guard, and civilian defense employees -- say the license does not include approval for use against inhalation anthrax.

The Pentagon maintains that the vaccine is not experimental and that it is licensed for protection against anthrax whether it is inhaled or absorbed through the skin.

Sullivan noted that the label on the vaccine does not specify which method of anthrax exposure it protects against. He cited a 1998 law prohibiting the use of certain experimental drugs unless people being given the drug consent or the president waives the consent requirement.

Congress passed the law amid fears that the use of such drugs may have led to unexplained illnesses among veterans of the 1991 Persian Gulf War, which have come to be known as Gulf War Syndrome.

"The women and men of our armed forces put their lives on the line every day to preserve and safeguard the freedoms that all Americans cherish and enjoy," said Sullivan.

"Absent an informed consent or presidential waiver, the United States cannot demand that members of the armed forces also serve as guinea pigs for experimental drugs," Sullivan said.

The Pentagon had no immediate comment.

Sullivan rejected the government concern that military discipline would be harmed if courts intervene between soldiers and their military superiors.

Believing Iraq and other nations had produced anthrax weapons, former secretary of defense William Cohen in 1997 ordered the armed forces immunized.

Shots started in 1998 for soldiers in areas believed to present the highest risk of infection -- the Persian Gulf, then Korea.

The anthrax vaccine itself has been approved by the Food and Drug Administration since the 1970s and used regularly to protect veterinarians and scientists working with anthrax.

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.