By some estimates, approximately one-third of U.S. military service members have opted out of the COVID-19 vaccine. Some think that number could be higher; for example, according to a new report, nearly 40 percent of U.S. Marines are declining vaccinations. An earlier December report from the nonprofit advocacy group Blue Star Families estimated that nearly half of military members would decline the vaccine if offered. In response, six members of Congress recently sent a letter to President Joe Biden, asking him to make the vaccine mandatory for all military service members.

In what follows, I address three questions that have arisen from the U.S. military’s ongoing efforts to vaccinate members of the armed forces:

  • Can military members be legally required to receive the COVID-19 vaccination?
  • What lessons from earlier military vaccination efforts (e.g. anthrax) can be applied to COVID-19?
  • What is the impact on vaccination refusal on military readiness?

Can military members be legally required to receive the COVID-19 vaccination?

Ultimately, yes—but this answer requires a bit of nuance and process. As of this writing, the president and defense secretary have not ordered mandatory vaccination for the military (or the general public for that matter). COVID-19 vaccination remains strictly voluntary for all military service members, consistent with earlier pledges by Biden that he would not make vaccinations mandatory. But that could change, particularly for deployed service members who work in tight quarters where infection rates can spike quickly. For now though, DoD appears committed to the voluntary vaccination approach.

As a statutory matter, in 2003, Congress passed a law (10 U.S.C. § 1107a) that requires informed consent prior to military members receiving vaccinations issued under an emergency use authorization (EUA). All three COVID-19 vaccinations being used in the United States —Moderna, Johnson & Johnson and Pfizer—are being administered under an EUA. And all three have not been fully approved by the Food and Drug Administration. By some estimates, full approval may take up to two years.

But, according to the law, the president can waive this informed consent requirement if he determines that it is “in the interest of national security” to do so. While Biden has not done this, some members of Congress have called upon him to do just that.

If this informed consent provision is ultimately waived, military commanders can clearly order military members in their command to receive the vaccine. This is consistent with the “Failure to obey an order or regulation” under the Uniform Code of Military Justice (UCMJ). Even if the informed provision is not waived by Biden, a mandatory military vaccination order may survive challenges in military criminal courts implementing the UCMJ. Federal civil courts would likely scrutinize such a move much more closely. This is based upon prior decisions and the military’s experience in implementing the anthrax vaccination program, which I turn to below.

Relatedly, outside the military context, over 100 years ago, the Supreme Court upheld a local Board of Health’s authority to require smallpox vaccinations during a smallpox epidemic. As Professor Lawrence Gostin at Georgetown Law has previously argued, Jacobson reaffirms the “basic police power of the government to safeguard the public’s health.” This decision, Jacobson v. Massachusetts, has been relied upon during this pandemic to implement mandatory mask wearing and social distancing.

What lessons from earlier military vaccination efforts (e.g. anthrax) can be applied here?

Quite a few. The anthrax vaccine was administered as an “investigational new drug” (IND) in the late 1990s. Congress passed a law in 1998 (10 U.S.C. § 1107), effectively requiring informed consent from military members prior to administration of INDs such as anthrax. This is a different but analogous law to the COVID-19 emergency use authorization. President Bill Clinton signed an executive order in 1999, reaffirming the informed consent requirement and laying out the process for seeking a waiver. But both President Clinton and Bush did not waive the informed consent procedure. The mandatory anthrax vaccination program was administered anyway, although it was started and stopped several times in the early aughts. This was due to issues with the manufacturer’s ability to pass inspections and disagreements about whether the anthrax vaccine was administered consistent with its labeling. Perhaps not surprisingly, orders to take anthrax vaccinations were challenged by military service members in both military and federal courts.

As military commanders ordered anthrax vaccinations, some service members refused, arguing that they had not provided their informed consent to the anthrax inoculation. Federal courts heard civil, administrative, and constitutional challenges, while military judges heard challenges under the UCMJ.

Federal courts ruled against the DoD’s mandatory vaccination program in 2003 and 2004. Judge Sullivan of the D.C. District Court issued an injunction against the military mandatory anthrax vaccination program in 2004 in Doe v. Rumsfeld. He required informed consent or a presidential waiver until the Food and Drug Administration categorized the anthrax vaccine as “safe and effective.” This stopped the anthrax vaccine administration in its tracks. Shortly thereafter, the Food and Drug Administration classified the vaccine as “safe and effective,” and the injunction was lifted.

In contrast, military judges routinely upheld the lawfulness of military orders to service members to receive the anthrax vaccine, even if the service member had not affirmatively given her informed consent.

For example, in a 2000 case, Ponder v. Stone, a Navy sailor argued that the president had not waived the informed consent provision for the anthrax vaccine, which was still an IND. As such, he argued, he could not be compelled to take the vaccine without his prior consent. The military appellate court rejected these arguments, disagreeing with this characterization of the anthrax vaccine and deferring to existing military instructions. It also highlighted existing Navy instructions that mandated anthrax vaccination. Under the UCMJ, military orders have a high presumption of legality provided that the order is issued by a competent authority and there is a relationship of the order to a military duty.

In a 2006 case, United States v. Kisala, an Army specialist was convicted of willfully disobeying a lawful order of his superior commissioned officer to receive an anthrax vaccination. In upholding his conviction, the Court of Appeals for the Armed Forces held that the informed consent requirement was not implicated by the order to receive the vaccine.

The upshot of the anthrax cases is that there is a substantial risk of a federal court striking down a mandatory military vaccination program for COVID, particularly if the president does not explicitly waive the informed consent requirement. Military courts will likely uphold the lawfulness of vaccination orders, even if Biden does not waive informed consent. Still, it is extremely difficult to imagine the DoD or any one military commander getting out ahead of the president and ordering vaccinations. Time will tell whether a more heavy-handed approach is warranted or desired.

What is the impact of vaccination refusal on military readiness?

Potentially significant, but it appears that the military has worked hard to institute protocols to minimize the spread of COVID-19. And it remains to be seen what the military’s true opt-out rate is and whether it is higher or lower than the country’s. By one estimate, one in four Americans would refuse a COVID vaccine outright if offered. Last year, the COVID-19 outbreak onboard the Theodore Roosevelt, a 5,000 person aircraft carrier, infected a quarter of the crew during a time of heightened tensions in the Indo-Pacific Command. Recent outbreaks on Navy ships have raised further alarm bells that the high opt-out rate endangers national security and undermines readiness: the U.S. Navy’s Fifth Fleet in the Middle East experienced two COVID-19 outbreaks on a Navy ship in March, impacting operations. This appeared to be a short-lived crisis and the ships were quickly returned to normal operations. But another COVID break-out on a Navy vessel or operational unit could weigh in favor of determining that mandatory vaccination is “in the interests of national security.”

To date, 177,000 service members have contracted COVID-19, resulting in 24 deaths. Thankfully, the COVID-19 fatality rate for the military is comparatively low, reflecting the military’s younger and healthier population.

Earlier this week, Congressman Seth Moulton (D-MA), a former Marine argued that the military’s low vaccination participation rate is dangerous for national security. (For the general population, it appears that an estimated one in five Americans are hesitant to get the vaccine.) Regardless of policy regarding mandatory vaccination, there must be a broad public health information effort designed to counteract vaccine falsehoods and misinformation – both for the military and the public. That is already occurring, but perhaps more needs to be done.

Speaking from personal experience, there was a lot of initial discussion about the anthrax vaccine when it was first administered in my naval aviation squadron in 2003. But military health professionals did an effective job of explaining the vaccine and answering all of our questions. Some have pointed out that the biggest factor in making a vaccine decision is knowing someone personally—that you trust—who decided to get the vaccine. That seems right. Soon thereafter, a vaccine “tipping point” occurred in my squadron as we saw our fellow aviators getting the vaccine and doing OK. Hopefully, a similar COVID-19 vaccine tipping point will occur in the military.

Where do we go from here?

While the military has aggressively engaged in an information campaign about the efficacy and safety of the COVID vaccines, misinformation continues to spread online. Far-right extremists, as well as Russian Twitter trolls, have helped fuel anti-vaccination information on social media. The U.S. government should double-down on efforts to counter this.

The DoD recently announced that it will be ready to offer COVID-19 vaccinations to everyone by May 1— so more information about the overall military vaccination rate should be available shortly. While Defense Secretary Lloyd Austin has not indicated that he will request a waiver of the informed consent provision, this remains a valid option. He has also squarely addressed vaccine hesitancy. As the above three questions highlight, mandatory vaccination may not ultimately be pursued for a variety of reasons, and hopefully it won’t be needed. But a mandatory vaccination program would likely be upheld in military and federal courts if President Biden determines that it is in the interests of national security.

Image: Navy Capt. Stewart Bateshansky, commodore of Amphibious Squadron 3, is vaccinated aboard the amphibious assault ship USS Makin Island in the Arabian Gulf, March 19, 2021. Photo by Navy Seaman Nadia Lund, U.S. Department of Defense