Judge Denies Soldier Over Anthrax Shot
BY THOMAS D. WILLIAMS
The Hartford Courant
June 02, 2000
http://www.ctnow.com/scripts/editorial.dll?bfromind=1007&eeid=2455631&eetype
=article&render=y&ck=&ver=hb1.3
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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