An appeals court in Ohio has upheld an injunction that protects around 10,000 unvaccinated active-duty, reserve and National Guard service members in the Air Force and Space Force from being punished as they await religious exemptions from the COVID-19 vaccine.
The ruling, issued by the 6th Circuit Court of Appeals in Cincinnati on Tuesday, upheld previous wins by attorneys representing the service members over the last year and took aim at the Air Force’s process of approving religious exemptions. The decision sets the stage for a future trial or, possibly, the case winding its way up to the Supreme Court.
“These are people of principle who’ve had the proverbial gun to their head for a year and a half,” Thomas Bruns, a Cincinnati-based attorney with Bruns, Connell, Vollmar & Armstrong representing the service members, told Military.com on Wednesday. “All because they wouldn’t violate their moral conscience. So this was a huge win for our clients.”
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The lawsuit, first filed by troops attached to Wright-Patterson Air Force Base, Ohio, has led to temporary protections for around 10,000 active-duty, Active Reserve, reserve and National Guard members of the Air Force and Space Force who requested a religious exemption from the COVID vaccine, although only those who have been denied an exemption would face immediate action.
Vaccine refusers often state that the use of fetal cell lines in the creation of the shots conflicts with their views on abortion.
The Pfizer and Moderna COVID-19 vaccines do not need fetal cell lines for development or production but were tested on fetal cell lines replicated from a fetus aborted in the 1970s to ensure their efficacy. Only the Johnson & Johnson vaccine is made using fetal cell lines.
The Pentagon announced in late August that Novavax — a COVID-19 vaccine developed without the use of human fetal-derived cell lines or tissue — is an option for service members.
Tuesday’s ruling criticized the Department of the Air Force for approving only a handful of religious exemptions since the start of thePentagon’s COVID-19 vaccine mandate in August 2021.
“The Air Force has granted only about 135 of these requests and only to those already planning to leave the service,” Circuit Court Judge Eric Earl Murphy wrote in Tuesday’s opinion. “Yet it has granted thousands of other exemptions for medical reasons (such as a pregnancy or allergy) or administrative reasons (such as a looming retirement).”
Additionally, the ruling took aim at the Air Force, saying evidence supplied by the attorneys in the case have shown blanket denials for many seeking religious exemptions.
The ruling said the Air Force “wrongly relied on its ‘broadly formulated’ reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues.”
The case started out as a smaller lawsuit out of Wright-Patterson Air Force Base.
In July, U.S. District Court Judge Matthew McFarland issued a preliminary injunction that stopped the Department of the Air Force from discharging or disciplining service members in the case.
The Air Force told Military.com on Wednesday that it’s following the previous rulings and is not removing anyone from the ranks who is seeking a religious exemption.
“The Department of the Air Force is complying with a court order to pause all disciplinary and adverse actions for members refusing the COVID-19 vaccine who submitted a timely religious accommodation request and fall within the definition of the court’s certified class,” Air Force spokeswoman Laura McAndrews told Military.com in an emailed statement on Wednesday.
Bruns told Military.com that there are many ways the case could proceed, including the possibility of Congress stepping in to reverse the vaccine mandate. But if the case continues its way through the courts, he anticipates a trial and possibly even the case going before the Supreme Court.
“I don’t see the government changing its position,” Bruns told Military.com.
As of Nov. 1, the latest data provided, the service had approved more than 1,000 medical and administrative exemptions to the vaccine.
According to the most recent vaccination data for the Department of the Air Force, 98% of the total force — active duty, reserve and Air National Guard — has been inoculated against COVID-19. Around 12,000 of the 497,000 total personnel in the Air Force and Space Force have not. The services have not released numbers on what percentage of their troops have received boosters.
Notably, the Air Force has already started to make some exemptions for unvaccinated service members.
In October, the Air Force said it is allowing instructor pilots who remain unvaccinated against COVID-19 to fly again. They had previously been grounded.
In an Oct. 25 memo, Maj. Gen. Phillip Stewart, commander of 19th Air Force, wrote that, though the pending court case “does not affect” the service’s policy regarding unvaccinated flight instructors, he was reinstating their flying privileges because it was “in the best interest of the Air Force.”
“This guidance will be reassessed after the final determination of the court,” he added.
The Department of the Air Force has been trying to incentivize vaccinated service members to stay up to date with COVID-19 boosters, offering one-day passes earlier this month to encourage service members to get the latest shot.
— Thomas Novelly can be reached at thomas.novelly@military.com. Follow him on Twitter @TomNovelly.
Related: Air Force and Space Force Are Offering One-Day Passes for Troops to Get COVID-19 Boosters
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