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March 22, 2005

Despite court order, some anthrax inoculations continue
By Deborah Funk
Times staff writer

More than four months after a federal judge halted the mandatory anthrax vaccination program, some service members continued to receive shots.
Although the numbers fluctuate, the government estimates about 500 service members were vaccinated since Oct. 27, the day U.S. District Court Judge Emmet G. Sullivan said the Pentagon could give anthrax vaccinations only under informed consent requirements in federal law or if the president declares the service members’ consent is not required. Some of those vaccinations occurred as recently as March.

Troops vaccinated after the court order shut down the program are to receive a letter of apology from military officials saying, “You recently may have received an anthrax vaccination by mistake.” The letter says the federal court halted the program, that vaccinations should not have been given and that defense officials are taking steps to try to resume the vaccinations. The letter, signed by Army Col. Steven Jones, director of the Military Vaccine Agency, also says “this letter is not any sort of health warning.”

Sullivan is to decide whether to change his court order to allow the Pentagon to vaccinate, on a voluntary basis, under a new provision of law saying the vaccine is being used under an “emergency” deemed by the Department of Health and Human Services. His decision is expected by April 1.

At a court hearing Monday, Justice Department attorney Brian Boyle argued that vaccinations should be allowed to resume under the emergency use. He said that 20 percent of the forces in central and southwest Asia have never received an anthrax shot and 75 percent are overdue for their next shot, so they have declining immunity.

But John J. Michels Jr., an attorney representing the service members and civilian workers who sued to stop the vaccinations, said the government is disingenuous to raise concerns about declining immunity when it holds the remedy for such a problem: seek a presidential waiver of informed consent and resume vaccination.

Exactly how many service members received the shot after Oct. 27 is unclear. Defense officials initially estimated 931 service members were erroneously vaccinated after Sullivan’s order, then lowered the estimate to about 250. On Monday, Boyle said the number was about 500, including “random” events in recent months. Three service members, including two doctors who requested the shots, were vaccinated in February. In late February a general in Europe was vaccinated at a clinic. In March, nine Marine reservists in Cincinnati were vaccinated. Also in March a doctor self-injected the anthrax vaccine.

None of the vaccinations were part of a “nefarious” attempt to keep the program alive; they were errors and the government takes them seriously, Boyle said.

Defense Secretary Donald Rumsfeld ordered the program halted immediately after Sullivan issued his order, and stopped vaccine shipments from the manufacturer. When defense officials learned in January that some shots still were being administered, they took additional steps, including quarantining all vaccine. The technician who administered the shots to the Marine reservists in March should not have had access to vaccine, but the January directive to turn in the supply had not reached that clinic, Boyle said.

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