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December 14, 2005

Court asked to allow mandatory inoculations

By Gordon Trowbridge
Times staff writer

A law banning the Pentagon’s use of experimental drugs without troops’ consent does not preclude mandatory anthrax vaccinations, government lawyers contend in their latest court filing in the long-running legal battle over the vaccine.
The government brief, filed this week with the U.S. Court of Appeals for the District of Columbia Circuit, argues that the controversial vaccine’s licensing under a law governing biological products trumps a 1998 law in which Congress required troops to consent before the military administered investigational drugs.

Applying the 1998 law — passed in response to widespread concerns about the use of experimental drugs and the emergence of Gulf War Syndrome — would “preclude the military from requiring the administration of any vaccine,” the government contends. “No basis for such a reading exists in law or logic.”

The Pentagon is seeking to overturn a federal court ruling last year that halted mandatory anthrax vaccinations. That ruling was a victory for the six anonymous military and Defense Department civilian plaintiffs who contend the Pentagon was requiring vaccinations using a drug unapproved for use against airborne anthrax spores — the kind of anthrax most likely to be used by an enemy in battle.

The appeals court heard oral arguments in the case Dec. 1 and four days later ordered the parties to file briefs on whether the 1998 law, which bars mandatory use of drugs for uses unapproved by the Food and Drug Administration, should apply to the anthrax vaccine. That law had played little role in the legal battle before the three-judge panel that is hearing the case raised it during oral arguments.

The government’s brief, filed Dec. 12, argues that because vaccines and other “biological products” are licensed not by the FDA, but by the National Institutes of Health under a separate law, the congressional ban should not apply to the vaccine.

Lawyers for the six anonymous military members who filed the suit are scheduled to respond to the government’s brief by Dec. 19. A decision by the appeals court is not expected for several weeks.