Can the Military Vaccinate Military Families?
One vaccine issue I encountered in years came up when the military transferred a military member to a foreign country (or between foreign countries). When this occurs, the military moved the family—the military member’s spouse and minor children—with the military member to the foreign country. However, when the military did that, they required the family to be vaccinated. While Department of Defense (DoD) regulations were clear on this point, the regulation was arguably in conflict with other DoD regulations, federal statutes, the U.S. Constitution, and international WHO regulations for families with legally qualifying religious objections to vaccines. A brief summary of these points follows.
First, the military doesn’t have direct control over a military member’s non-military (civilian) spouse and children. However, routine procedure is that when a military member is transferred, the military moves the member and family together at the military’s expense. But this isn’t a requirement; the member and family have the option of moving the family at their own expense. So, the military may reasonably impose any lawful condition on the member and family for providing that service. I argued, however, that the military couldn’t lawfully deny a religious exemption for the family if one or both parents held legally qualifying religious objections to vaccines, even though the regulations didn’t provide for a religious exemption. Here’s a quick overview:
1. DoD regulations allowed for religious exemptions in military schools. It wasn’t reasonable that the children of a military member could be granted a religious exemption to attend military schools unvaccinated before and after the move yet have to be vaccinated to make the move. It was also arguably inconsistent, if in a more general way, that the military offered religious exemptions to civilian contractors yet not for military member’s civilian spouse and children when being transported overseas by the military. These inconsistencies raised questions under the due process clause of the U.S. Constitution’s 5th Amendment similar to that of the Constitution’s “equal protection” clause in the 14th Amendment (which applies to the states). The concept is that governments may not lawfully treat people who are “similarly situated” differently.
2. DoD regulations stated there was “no mechanism for requesting or obtaining a waiver,” but the lack of a “mechanism”—a procedure—doesn’t preclude the existence of a substantive (non-procedural) right. Furthermore, the regulations said that family members “should” be vaccinated, which word falls short of an absolute requirement despite the military’s policy of treating vaccines in this situation as a requirement.
3. In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which states: “Government shall not substantially burden a person's exercise of religion . . .” unless doing so “(1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” If we assume that vaccines constitute a “compelling government interest” (yes, real science contradicts this notion, but the practical reality is that trying to argue that is a lost cause, given that all federal health agencies say otherwise), the “least restrictive means” clearly would include allowing religious exemptions for military families given, as a scientific matter, that “herd immunity” (supposedly) protects all children when most are vaccinated; and given, as a legal matter, the religious exemptions allowed by the military with children in military schools, members of the military, and civilian contractors with the military, not to mention the many religious exemptions allowed in the civilian world. (The RFRA only applies to the federal government. However, several states have passed similar legislation bolstering religious freedom in those states under state law.)
4. Finally, the federal government, including the military, doesn’t have jurisdiction over international travel; they could only require vaccines as a condition of the military providing the transportation for the civilian family. The World Health Organization (WHO) has authority over vaccines required for international travel (though only to the extent that individual countries opt in; however, most of the world’s countries have opted in), and the WHO’s International Health Regulations (IHR) required few routine vaccines for international travelers—none for the families I’ve assisted in the past. (For more on this see Vaccines Required for International Travel).
Given the above, the lack of an explicit religious exemption in military regulations doesn’t preclude a right for military families to be transported overseas by the military without being vaccinated when one or both parents hold legally qualifying religious objections. I’m happy to report that all of my past clients dealing with this issue were successful in avoiding the required vaccines.
The families I assisted were mostly Navy families. I’m unclear as to whether the regulations were updated to provide a religious exemption, but I did succeed in getting the Navy to revise other unconstitutional religious exemption regulations—twice! I’ll address those matters in an upcoming article.
Alan Phillips, J.D.
Vaccine Rights Legal Expert
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Alan Phillips, J.D., is the nation’s leading vaccine rights legal expert, the only person who’s ever been a fulltime attorney with exemptions, who’s worked in over 60 exemption contexts and sub-contexts with clients, attorneys, legislators, and activists nationally for over two decades. For exemption help, see vaccinerights.com.