Vaccine Appeal by Marine Turned Down by US Supreme Court

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Marine Loses Vaccine Appeal

By ANNE GEARAN

..c The Associated Press

WASHINGTON (AP) - A Marine court-martialed for refusing to take the mandatory anthrax vaccine lost a Supreme Court appeal Monday.

The high court, without comment, turned down the Marine's claim that the military prosecution violated his constitutional rights.

Lance Cpl. D. challenged a pretrial ruling that the order requiring him to take the anthrax vaccination was lawful.

By deciding that question ahead of trial, the military judge violated 's Fifth Amendment right to proper access to the legal system and his Sixth Amendment right to a jury trial, his lawyers argued.

A military court should have been allowed to decide at trial whether the order was lawful or not, 's lawyers argued. There was never any dispute that refused to submit to the vaccination, so the question was crucial to his defense.

``The trial judge has barred even a hint of a rebuttal to the legality of the order because she has declared the order lawful and will exclude any evidence to the contrary as a result,'' 's lawyers wrote.

was convicted last month at Camp Pendleton in California.

The Pentagon ordered all 2.4 million active duty and reserve troops to undergo a six-shot anthrax vaccination regimen as protection against biological warfare. More than 400,000 service members have been vaccinated since the program began in 1998.

Anthrax is a naturally occurring virus that typically affects sheep and cattle. Dry anthrax spores, when inhaled, can be deadly to humans. The Pentagon claims anthrax exposure is 99 percent lethal.

A small group of service members claim the shots are not safe and have refused to undergo them. Those who refuse are first counseled by a superior. Continued refusal is treated as insubordination.

An unknown number of reservists have also quit rather than get the shots.

The Pentagon has always said the vaccination is safe, although serious side effects happen about once per 200,000 doses. Severe allergic reactions occur less than once per 100,000 doses, the Pentagon says.

Facing a shortage of the vaccine, the Pentagon scaled back its vaccination program last summer and now requires it only for troops headed for the Persian Gulf region. The wider vaccination program will resume when more vaccine is available, Pentagon officials say.

was charged with disobeying his superior officer and disobeying the Pentagon's general order to be vaccinated. He claims the vaccine should be considered unproved or experimental and that service members should have the right to refuse it.

is at least the fourth service member to challenge the legality of the Pentagon's order for universal anthrax vaccination, one of his lawyers said. The other cases have also resulted in court-martial and conviction.

The case is In Re , 00-1290.

On the Net:

Pentagon anthrax program: http://www.anthrax.osd.mil

AP-NY-03-19-01 1113EST