Vaccine Litigation Lingers After Lifting of Military Mandate

A hospital corpsman constitutionalizes a COVID-19 vaccination
A hospital corpsman assigned to the USS Gerald R. Ford constitutionalizes a COVID-19 vaccination Sept. 9, 2021. (U.S. Navy photo by Mass Communication Specialist 2nd Class Zachary Melvin)

NEW ORLEANS — Lawyers for a group of Navy SEALS and other Navy personnel who oppose a COVID-19 vaccination requirement on religious grounds want a federal appeals court to keep alive their legal fight against the Biden administration, even though the requirement has been lifted.

Congress voted to end the requirement in December. However, vaccine opponents note that commanders can still make decisions on how and whether to deploy unvaccinated troops, under a memo signed last month by Defense Secretary Lloyd Austin.

In a case to be argued Monday afternoon at the 5th U.S. Circuit Court of Appeals in New Orleans, government lawyers say the issue is moot. They want the appeals court to lift injunctions blocking the vaccine requirements, saying they intend to have the whole case dismissed in a lower court.

Attorneys for the unvaccinated Navy personnel argue in briefs to the 5th Circuit that Austin’s memo and other Defense Department actions show that the Navy still intends to treat unvaccinated personnel “like second-class citizens because of their religious beliefs.”

Government lawyers argue the policy is in line with “well-established principles of judicial noninterference with core military decision making,” in their briefs.

The Navy SEALS filed their lawsuit in November of 2021, describing what they saw as a cumbersome 50-step process to apply religious exemptions for the COVID-19 vaccine. Their lawyers have called a “sham” with applications being “categorically denied.”

The Defense Department denied the process was onerous and said the Navy has a compelling interest in requiring vaccinations for personnel who often operate for long periods in “confined spaces that are ripe breeding grounds for respiratory illnesses.”

In January of last year, a federal judge in Texas barred the Navy from taking any action against the Navy plaintiffs for being unvaccinated. A 5th Circuit panel rejected the Biden administration's request to block the judge's order.

But the administration won at least a temporary, partial victory last March when the Supreme Court approved a “partial stay.” The order allowed the Navy to consider the sailors’ vaccination status in making decisions on deployment, assignment and other operational issues while the case plays out.

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