Facebook Twitter

Why the Senate did not reinstate military members who refused the COVID-19 vaccine

Senate floor debate between Sens. Johnson and Reed Thursday provided arguments from both sides

SHARE Why the Senate did not reinstate military members who refused the COVID-19 vaccine
Sgt. 1st Class Doreen Fajota gives Sgt. Brittany Koppenhaver a Moderna COVID-19 vaccine.

Sgt. 1st Class Doreen Fajota gives Sgt. Brittany Koppenhaver a Moderna COVID-19 vaccine Tuesday, Dec. 22, 2020, at Fort Carson U.S. Army Base in Colorado Springs. The status of military members dismissed for refusing to get a COVID-19 vaccine is still in limbo.

Christian Murdock, The Gazette via Associated Press

Senate floor debate on Thursday revealed why the body voted 56-40 to reject Wisconsin Republican Sen. Ron Johnson’s amendment to reinstate military members discharged for declining the COVID-19 vaccine.

Last week, the Senate passed the National Defense Authorization Act for 2023 that included instruction to Defense Secretary Lloyd Austin to rescind his COVID-19 vaccine mandate for service members. President Joe Biden is expected to sign the bill, which will effectively end the vaccine mandate going forward, but does not address the thousands of military members who were discharged for refusing the order to get the vaccine.

“People serving in our military are the finest among us. Over 8,000 were terminated because they refused to get this experimental vaccine,” Johnson said on the Senate floor before urging his colleagues to vote in favor of the amendment. 

Johnson’s amendment, supported by all but four Republican senators, would have reinstated service members who were discharged solely for refusing the vaccine. It also would have provided back pay and adjusted their separation status to an honorable discharge, and would have prohibited the military from issuing future vaccine mandates without the express authorization of Congress.

However, Democratic Sen. Jack Reed of Rhode Island objected to the amendment arguing that it would undermine future discipline and order in the military. “What message do we send if we pass this bill?,” Reed said. “What we are telling soldiers is: If you disagree, don’t follow the order and just lobby Congress. … They will restore everything, so orders are just sort of a suggestion. They are not.”

Reed defended Austin’s order that all military personnel be vaccinated against COVID-19. It was issued in August 2021, which “at that point, it was an approved FDA pharmaceutical. It is a legally binding order,” Reed said.

“In the U.S. military, a lawful order is not a suggestion; it is a command,” he said.

Johnson responded arguing against the legality of Austin’s order: “It is not a lawful order because the executive order required that the vaccine be fully FDA-approved.”

Johnson was ostensibly referring to a 2004 lawsuit filed by service members who refused an anthrax vaccine mandated by the Department of Defense. U.S. District Judge Emmet G. Sullivan found the Food and Drug Administration did not follow its procedures in approving a vaccine and ordered the Pentagon to halt compelled vaccination.

“Absent an informed consent or presidential waiver, the United States cannot demand that members of the armed forces also serve as guinea pigs for experimental drugs,” Sullivan wrote in his ruling, citing a 1998 law prohibiting a military mandate of a drug unapproved for its intended use. Congress passed the law at the time due to fears Persian Gulf War veterans may have fallen ill from drugs not fully approved — an illness that came to be known as Gulf War Syndrome.

The amendment fell well short of the 60 vote threshold it needed. Republican Sens. Mitt Romney of Utah, Mike Rounds of South Dakota, Bill Cassidy of Louisiana and Susan Collins of Maine joined Democratic Senators in voting against the amendment.

“These were direct orders from commanding officers,” Cassidy said later in a statement given to the press. “I voted to end the COVID vaccine mandate in the military but it is not Congress’s place to intervene in the chain of command and set a precedent for military personnel to ignore direct orders.”

After the vote, Johnson and nine other Republican senators who supported the amendment sent a letter to Austin encouraging the Department of Defense to reinstate discharged service members via its own processes. The letter cited troop morale as a compelling reason to reinstate them.