Judge Denies Soldier Over Anthrax Shot
by Thomas D. Williams
The Hartford Courant
June 2, 2000
A federal judge in Denver Thursday denied a temporary injunction on behalf of a Fort Carson soldier challenging her other than honorable discharge because she refused to take the mandatory anthrax vaccine.
Despite the ruling against the soldier, Pfc. Jemekia Barber, the case could yet become a crucial test of the legality of the military''s only vaccine in use against biological warfare. Hundreds of service members have left the military rather than take the shots, or are being prosecuted for refusing to take them.
It still could be months before U.S. District Judge Edward Nottingham decides the crucial issue of whether the Pentagon obtained proper legal approval to use the vaccine from the U.S. Food and Drug Administration.
This is only the second court case nationwide challenging the vaccine. The first one, in Pittsburgh, ended in a compromise, setting no legal precedent for the legality of the drug.
In a Canadian case, a judge in a military court has ruled that a soldier there could not be court-martialed for refusing the vaccine because the drug is probably unsafe.
BioPort Inc. of Lansing, Mich., the Pentagon''s sole supplier, manufactures the drug for both U.S. and Canadian forces.
Barber, 26, said she did not want to take the drug because of warnings on the label that the vaccine could cause adverse reactions, including sterility, and possibly harm her future unborn children.
Her husband, Rodney, just received an other than honorable discharge in place of a court martial because he too refused to take the vaccine.
Ginger Colburn, a Ft. Carson spokeswoman, said now that the judge refused to block Jemekia Barber''s discharge, she will immediately receive the same treatment as her husband. So if Jemekia Barber loses the case, they will both be denied service member benefits.
Jemekia Barber is asking for an honorable discharge, yielding benefits. And, if she wins the case, she will seek that same discharge for her husband. Barber''s lawyers, Herb Fenster and Louise Bouzari, say the U. S. Department of Defense is using the vaccine illegally. They argue that it was manufactured to protect persons from infections obtained through skin cuts, and not for protection against inhalation of spores used for biological warfare. The National Institutes of Health said recently that there is no evidence that the drug is effective against biological agents.
But assistant U.S. attorneys Mike Hegarty and Peter Krumholz are asking Nottingham to dismiss Jemekia Barber''s lawsuit. They argue that the court does not have the power to order the Army to do what she wants. In addition, they say the court does not need to order a general or honorable discharge for her because Barber can get similar relief in the military appeals system.
The U.S. military plans to inoculate all 2.4 million troops against anthrax as protection against biological warfare, and has already inoculated about 445,000. But, because the manufacturer has been denied approval to release its own newer product, it may run out of the vaccine in July, well before all troops can receive the drug.
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