As Pentagon prepares to make Covid-19 vaccine mandatory, some lawyers see a surge in calls

By Oren Liebermann, CNN

The messages began pouring into the law office of Joseph Jordan in Killeen, Texas, soon after the Pentagon announced it would seek to make the Covid-19 vaccines mandatory for troops. Service members wanted to know what their options were if they didn’t want to be vaccinated.

“It’s been the number one issue for our law firm for the last few days,” Jordan told CNN. “I’m getting emails, I’m getting messages on my Facebook, we’re getting phone calls. It’s been absolutely nuts. Three or four calls an hour.”

The issue of mandatory vaccinations is relatively new for Jordan, whose experience as a criminal defense attorney near Fort Hood focuses on violations of the Uniform Code of Military Justice. But that hasn’t slowed the calls.

“The questions aren’t coming from the young enlisted. They’re coming from the seniors, they’re coming from the midlevel ranks,” Jordan said. “I talked to a guy with 31 years in the service, and he asked, ‘Do I need to retire now?'”

In the wake of Defense Secretary Lloyd Austin’s announcement Monday that he would by mid-September seek the authority to make the vaccine mandatory even if it hadn’t yet received full approval from the US Food and Drug Administration, other law firms have seen a similar spike in inquiries. CNN spoke with five law firms with a focus on military law that say they have all seen a surge in inquiries about the Covid-19 vaccines. (Two other law firms say they have not received questions on this issue.)

‘A lot of anger’

“The soldiers who have talked to me, I’ve experienced a lot of anger,” said Joseph Owens, a lawyer who served in the US Army’s Judge Advocate General’s Corps. Owens says his firm, based in Columbia, Maryland, has received about a dozen calls since Austin’s announcement.

For Owens, the question revolves around whether it is a lawful order to compel service members to receive the Covid-19 vaccine. And to answer that question, he says he will look into the decision-making process behind mandating that vaccine and the legal considerations that went into the decision. Any procedural missteps in testing, authorizing, or administering the vaccine, he says, could make it an unlawful order.

“I think there’s a very good argument that the answer is no, it’s not a lawful order,” Owens said, citing the troubled implementation of the anthrax vaccine in the late 1990s.

The military mandated the anthrax vaccine beginning in 1998, but it quickly ran into legal challenges and sowed distrust of unknown vaccines among service members, some of whom faced dismissal for their refusal to take the vaccine. That skepticism has crept up again with some troops for the Covid-19 vaccine.

“They want more data before they put a chemical in their body,” Owens said.

But a similar challenge to the Covid-19 vaccines could be far more difficult to make, especially if the Defense Department waits for FDA approval before making the shots mandatory.

Despite being far newer vaccines, the Covid-19 shots have been administered to nearly 170 million Americans and many more around the world. The vaccines currently have an emergency use authorization from the FDA. Under this authorization, the military has made the vaccine available on a voluntary basis — troops who want to receive it can. But until now, Pentagon officials had been clear that they would not move to make it mandatory, focusing instead on encouragement and education to convince skeptical service members of its importance.

Jordan acknowledged the potential difficulty of challenging a mandatory order to get the coronavirus vaccine.

“You may not have a leg to stand on as it is, because you’re looking at what is in the best interest of the service and your duty to your country,” he said.

The military has accelerated its plans to vaccinate the force with the expectation of either imminent FDA approval or a request for a waiver from the defense secretary.

A draft warning order obtained by CNN from a West Coast Army base lays out a detailed plan to organize vaccinations across the facility, including what roles units will play and where vaccination sites will be set up. The warning order, which is notification of an upcoming mission, says the date the vaccine becomes mandatory will be referred to as “V-Day,” short for vaccination day. It also appears to be a reference to “Victory Day,” a holiday to mark successes in battles or war.

‘V-Day’

“Given uncertainty with regard to potential FDA approval date, V-Day could occur with less than 7 days notice,” the draft warning order states.

There are up to 17 mandatory vaccines for troops, though the total number required for each individual service member depends on where he or she is deployed or based. In the United States, service members are required to receive at least eight vaccines before basic training, including chickenpox, Hepatitis A&B, and a yearly flu vaccine. (The anthrax vaccine is required for longer deployments in the Middle East and Indo-Pacific. In North America, it depends on Defense Department policy.)

As the Pentagon develops a policy around restrictions for service members who refuse to accept the Covid-19 vaccine once it becomes mandatory, troops who refuse the currently mandatory vaccines face an array of potential disciplinary actions, including possible discharge from the military.

Pentagon press secretary John Kirby said Wednesday that commanders would have a “range of tools” to work with service members who did not want to receive the vaccine that do not rely on disciplinary measures. But he added that “once a vaccine has been mandated, it becomes a lawful order to compel an individual to take the vaccine.”

“Our expectation is that if an individual doesn’t want to take the vaccine that we’re going to provide them some counseling,” said Kirby at a press briefing Wednesday, including “access to doctors, access to leaders in their chain of command so they fully understand the implications and repercussions to them if they don’t take the vaccine.”

Kirby said there could be religious and medical exemptions to receiving the vaccine, but that it would be considered on a case-by-case basis.

Patrick McLain, a retired Marine Corps military judge based in Dallas who still practices law, fully expects that some troops will be discharged over their refusal to receive the Covid-19 vaccine, similar to the courts-martial over the anthrax vaccine.

“I have no doubt it’ll happen again,” McLain said, estimating that it would take until the beginning of next year before the military began taking more severe actions. McLain said he had already taken on his first client who did not want to receive the vaccine, but he estimated that number across the military would be quite low in the end.

“There’s probably a relatively small percentage in the military that will resist it,” McLain said. “You’re not going to find too many people that are joining the military that are going to refuse orders.”

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CNN’s Ellie Kaufman contributed to this report.