Judge tells Pentagon to end compulsory anthrax shots

He says troops should not be used as `guinea pigs for experimental drugs'

December 23, 2003|By Esther Schrader | Esther Schrader,LOS ANGELES TIMES

WASHINGTON - The Pentagon suspended compulsory vaccination of U.S. troops against anthrax yesterday after a federal judge ordered the military to stop treating its personnel like "guinea pigs."

U.S. District Judge Emmet G. Sullivan ruled that the mandatory inoculations, administered to hundreds of thousands of troops annually since 1998, were in violation of a law passed that same year prohibiting the use of certain experimental drugs on troops.

A spokesman for the Justice Department, which represented the military in the case, said the Pentagon "will have to follow the judge's order" and instruct medical personnel at U.S. military facilities around the world to temporarily halt the vaccinations while it reviews the ruling. The order was effective immediately.

Anthrax is a naturally occurring bacterium that most commonly causes illness in cattle and sheep. When dried and inhaled, anthrax spores can be deadly to humans, and anthrax is a known biological warfare agent.

More than 900,000 service members have been vaccinated in recent years against a variety of diseases and bioterrorism threats, including anthrax. But as concerns have grown about the safety of the anthrax vaccine, hundreds of personnel have been court-martialed or given other punishments for refusing it, the Pentagon said.

The federal government approved the vaccine in the 1970s. But in his ruling yesterday, Sullivan agreed with the plaintiffs' argument that the vaccine was licensed only for use as protection against cutaneous anthrax, an easily treatable skin infection that occurs when anthrax spores enter a cut or sore. The Food and Drug Administration classifies the vaccine as experimental for use against inhalation anthrax, a far more serious form of the disease that results from breathing in the spores.

To date, evidence that the vaccine is linked to possible health risks including sterility, cardiac arrest and immune disorders has been scant. But lawyers representing service members who are refusing the inoculations say the shots have sickened hundreds and caused a handful of deaths. And the FDA has acknowledged that at least five service members have become ill after taking the vaccine.

In his 33-page opinion, Sullivan ruled that the anthrax vaccinations violate a law passed by Congress following concern that similar inoculations may have led to unexplained illnesses among veterans of the 1991 Persian Gulf war - illnesses that have come to be known as gulf war syndrome.

The law prohibits the administration of new drugs or those unapproved for their intended use to service members without their informed consent. The consent requirement may be waived only by the president.

"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," Sullivan wrote. "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."

In his ruling, the judge rejected the Defense Department's argument that the refusal of military personnel to be vaccinated undermined U.S. military readiness and hampered its ability to protect troops if biological weapons were used in battle.

The judge said he was "not convinced that requiring the [Defense Department] to obtain informed consent will interfere with the smooth functioning of the military."

He ordered the government to file its responses to the preliminary injunction by Jan. 30.

"All plaintiffs," the judge wrote, "have established that they will imminently suffer a harm that is actual, concrete, and inflicted at the hands of defendants."

The vaccine has been used since the 1970s to protect veterinarians and scientists working with anthrax.

In 1997, believing that Iraq and other nations had produced biological weapons containing anthrax, then-Secretary of Defense William S. Cohen ordered all 2.4 million members of the armed forces immunized, though that program was scaled back after the vaccine's sole U.S. producer experienced manufacturing problems.

The government contends that the vaccine is safe, with only rare serious side effects. A report last year by the General Accounting Office showed that a significant percentage of troops who had received anthrax shots reported inflammation in the area of the vaccination. Some reported extreme fatigue, joint pain and chronic memory loss.

The Los Angeles Times is a Tribune Publishing newspaper.

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