Navy revises vaccine exemption policy and regs by attorney request - twice!
Tuesday, April 26, 2011 by: Alan
(NaturalNews) Lawmakers can and sometimes do enact laws that are
unconstitutional. They can do this for the simple reason that a law isn't
technically unconstitutional until a court says it is. This makes sense, since
anyone can cry "unconstitutional" at any time about anything. Unfortunately,
though, this means that laws can be enacted that are unconstitutional, whether
intentionally or not by those enacting them. Such a situation occurred with the
design of some Navy regulations concerning vaccine religious exemptions. The
good news is, when the problems were pointed out to Navy officials at the Bureau
of Medicine and Surgery in Washington D.C., they agreed to change policy and
revise the regulations
accordingly -- twice!
The first instance occurred last fall when Navy officials refused to allow a
Navy family to transfer from Italy to Spain without getting vaccinated, despite
the family's religious objections. This was probably due to a flaw in regulation
design, but you know the
military -- they follow the regulations to the letter. Ironically, the
family had no problems refusing
vaccines in Italy or
Spain, but regulations required them to be vaccinated for the transfer from
Italy to Spain.
When I reviewed the regulations, several problems stood out. First, they were
inconsistent with the federal Religious Freedom Restoration Act (RFRA),i
federal statutory law that states: "Government shall not substantially burden a
person's exercise of religion"
unless it "furthers a compelling governmental interest" and "is the least
restrictive means of furthering that compelling governmental interest."ii
While we can reasonably assume that vaccination would be considered a compelling
government interest by
the Navy, the least restrictive means surely allows for religious exemptions,
since nearly every federal and state law that requires vaccines allows for
religious exemptions. Second, international travel
vaccine requirements are
governed by the World Health Organization's International Health Regulations,iii
and they require only the yellow fever vaccine, for people traveling in and out
of sub-Saharan Africa and tropical South America. Third, the Navy allows its
members to refuse vaccines for religious reasons, so requiring members' families
to be vaccinated was inconsistent with the rule for members. So, at my clients'
request, I sent these and other concerns in a detailed legal analysis to the
Vice Admiral, Navy Surgeon General of the Bureau of Medicine and Surgery. The
Commander of the Judge Advocate General's Corps replied and concurred with my
analysis. Policy has changed, and the regulations are being amended.
A second situation occurred this past winter on a much broader matter. Navy
regulations require a religious exemption applicant to be a member of an
organized religion with a tenet or belief opposing immunizations, and to have an
"authorized personal religious counselor" endorse the applicant's exemption
request.iv This raised several concerns. First, there are
multi-branch regulations that set out religious exemption requirements without
these restrictions; the Navy had added its own further restrictions to the
multi-branch rules. But the multi-branch requirements were broad for a reason:
More strict requirements would exceed the military's
authority under federal
law. A brief summary of the legal analysis is as follows:
First, the RFRA applies as described above, and it defines 'religious exercise'
as including "any exercise
of religion, whether or not compelled by, or central to, a system of religious
belief."v This is also a line of federal legal precedent telling us
that laws requiring
membership in an organized religion for the exercise of a state vaccine
religious exemption violate the First and Fourteenth Amendments of the U.S.
Finally, the Navy has authority under the multi-branch regulations to require
vaccines of an exempt member at any time that the member's commander deems the
mission to require that, so there's really no need for them to add further
restrictions to the multi-branch regulations. So, there is clear legal authority
to support the proposition that the Navy exceeded its authority by requiring
membership in an organized religion. Once again, I'm happy to report that the
Navy concurred with my analysis. I was recently informed that "the Navy has
changed its policy on immunizations for Service members," and they expect to
have revised regulations in place within the next few months.
Changing laws can be a lengthy, arduous task, especially if there is opposition
to the underlying agenda from mainstream authorities as is usually the case with
efforts to expand vaccine exemption rights. So, I'm grateful to the Navy for
their cooperation on these matters. It allowed us to gain some ground toward
greater vaccine freedom of
choice without the need for an adversarial lawsuit or a complicated grassroots
For more information about your vaccine exemption and waiver rights in a wide
variety of different contexts, see the Vaccine Rights Website:
ii 42 U.S.C. § 2000bb et seq.
iv MILPERSMAN 6320-010
v 42 U.S.C. §§ 2000bb-2(4) and 2000cc-5(7)(A)
vi Specifically, the First Amendment's free exercise and establishment clauses,
and the Fourteenth Amendment's equal protection clause. See, e.g., Sherr and
Levy vs. Northport East-Northport Union Free School District, 672 F. Supp.
81 (E.D.N.Y., 1987); Mason v. General Brown Cent. School Dist., 851 F.2d
47 (2nd Cir. 1988) (quoting United States v. Seeger, 380 U.S. 163, 166,
85 S.Ct. 850, 854); Lewis v. Sobel, 710 F. Supp. 506 (S.D.N.Y. 1989);
Farina v. The Board of Education, 116 F. Supp.2d 503 (S.D.N.Y. 2000) (citing
Sherr, 672 F. Supp. at 91); and McCarthy v. Boozman, 212 F. Supp.
2d 945 (W.D. Ark 2002).