The AP reported that “the deadline could be pushed up if the vaccine receives final FDA approval or infection rates continue to rise.”
“I will seek the president’s approval to make the vaccines mandatory no later than mid-September, or immediately upon” licensing by the Food and Drug Administration “whichever comes first,” Austin said in a memo to the troops.
“I will not hesitate to act sooner or recommend a different course to the President if l feel the need to do so. To defend this Nation, we need a healthy and ready force,” the Defense Secretary added.
An Armed Forces member refusing to take the vaccine is subject to punishment under the U.C.M.J., the AP’s report noted. The punishment for refusal to obey an order may escalate up to court martial.
“Some unvaccinated service members have suggested they’d get the shot once it’s required, but others are flatly opposed,” the report said. “Military officials have said that once the vaccine is mandated, a refusal could constitute failure to obey an order, and may be punishable under the Uniform Code of Military Justice.”
“Army guidance, for example, includes counseling soldiers to ensure they understand the purpose of the vaccine and the threat the disease poses,” the AP continued. “The Army also notes that if a soldier ‘fails to comply with a lawful order to receive a mandatory vaccine, and does not have an approved exemption, a commander may take appropriate disciplinary action’.”
Last week, President Biden indicated that he may order all military troops to get vaccinated. However, there may be legal complications tying to the Emergency Use Authorization that all of the vaccines are currently under.
“We are offering the COVID-19 vaccine on a voluntary basis in accordance with the emergency use authorization,” Pentagon spokesman Army Maj. Cesar Santiago told U.S. News. “When formally licensed by the FDA, the DoD may require a vaccine for military personnel or personnel in specific fields, as is the case for the influenza vaccine.” Santiago added that a military COVID vaccination requirement would require “a waiver to make the vaccine mandatory.”
Legal analysts cite prior situations that suggest that legal challenges to the COVID vaccine order may fail in court.
“Legally, vaccines under emergency use authorization require service members to grant ‘informed consent’ to receive one, which they are allowed to withhold,” U.S. News reports. “The law states a president may override that concern in the ‘interests of national security,’ according to an analysis from Duke University’s Lawfire blog in February.”
Robert Sanders, chair of the National Security Department at the University of New Haven, pointed to the case of troop vaccination to protect them from anthrax. A follow-on case found such orders did not violate troops’ constitutional rights because, “The requirement to place the needs of the nation above a service member’s personal welfare applies in peacetime as well as in war.”
Professor Sanders gave his assessment of legal challenges to the military vaccination order. “I believe such challenges will fail on the merits under the history of the anthrax vaccine’s military litigation,” he said.
COVID-related deaths have fallen from a January high of 3,000 per day to approximately 500 per day according to the 7-day rolling average, but are back in the rise with a lagged tracking of escalating Delta variant cases.