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The Bush administration asked a federal judge Tuesday to dismiss a lawsuit challenging mandatory anthrax vaccines for the nation’s 2.4 million service members. Justice Department attorney Andrew Clark argued the departments of Defense and Health and Human Services have immunity from the U.S. District Court lawsuit filed by an Air Force captain and a former Air Force major. Both refused to take the vaccine against the deadly bacteria. The Pentagon is considering when, and whether, to resume the vaccination program, initially suspended because the vaccine was scarce. Supplies are now available, but the government has limited the vaccine to a small number of special mission units. Some military personnel believe the vaccine causes health problems, and hundreds have been forced from the armed forces after refusing to take it. The government insists the vaccine is safe. The lawsuit wants the vaccine declared experimental, because the Food and Drug Administration never specifically approved the six-shot regimen used by the military to protect members of the armed services against airborne anthrax. President Clinton signed an executive order in 1999 that military personnel could not be administered experimental drugs without their consent except during national emergencies. “Once the executive order was signed, this program became illegal,” said John Michels Jr., the Air Force officers’ attorney. Clark said the FDA has issued an informal opinion saying the military’s use of the vaccine was “not inconsistent” with its guidelines. Judge Reggie Walton, of the U.S. District Court for the District of Columbia, questioned the officers’ case, saying federal agencies are better prepared than courts to decide whether a drug is experimental. He issued no ruling, however, and said he hoped to decide within a week. The lawsuit was filed by former Maj. Sonnie Bates and Capt. John Buck. Bates, based at Dover Air Force Base in Delaware, refused the vaccine in 1999 and was forced to end his 14-year military career and pay a fine. Buck, based at Keesler Air Force base, refused the vaccine in January 2001 and was court-martialed. He was confined to barracks for 60 days and was fined. The vaccinations were ordered in 1997 because of worry that Iraq and other nations hostile to the United States are developing anthrax weapons. Airborne anthrax can kill within days of inhalation. Anthrax attacks in the United States last fall killed five people and raised questions about whether civilians might need the vaccine. The federal government plans to test 1,500 volunteers across the country to find the best way to administer the vaccine. The study, at five medical centers across the country, will test whether injecting the vaccine directly into muscle, rather than just under the skin as is now done, makes it more effective or reduces the risk of side effects. The study also will test whether the vaccine can be as effective with fewer than six shots. Tuesday’s hearing did not touch on some major debates surrounding the military’s use of the vaccine: whether it is safe and whether personnel can disobey orders when they believe their health is needlessly endangered. The issue in Walton’s court was whether the case should continue. Clark said the Defense Department and HHS cannot be sued, without their permission, for actions that are part of the agencies’ normal responsibilities Clark also challenged Bates’ and Buck’s standing to file the lawsuit. He said there’s little chance either man would be ordered to take the vaccine. The lawsuit “would have no direct impact on plaintiff Bates himself or for that matter on Buck,” he said. He said they should use the military’s judicial system to try to reverse any disciplinary actions they received. Michels countered that the Pentagon and HHS couldn’t claim immunity because they exceeded their authority in requiring military people to take an experimental vaccine. He said both Buck and Bates, an inactive reservist, could be subjected to the vaccines again, and an order declaring the vaccine experimental would allow the men to seek redress in the military judicial system. Walton agreed to a request from the vaccine manufacturer, BioPort Corp., to be dropped as a defendant. He said the District of Columbia court lacks jurisdiction over the Michigan company. Copyright 2002 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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