A federal district court judge in Georgia on Tuesday granted a preliminary injunction to an Air Force officer that temporarily allows her to remain unvaccinated against COVID-19 without punishment.
The order from the U.S. District Court for the Middle District of Georgia marks the first time a court has barred the Air Force from enforcing its mandate for a service member. It’s the most recent judicial move opposing the federal requirement for uniformed troops and civilian employees alike.
“The court is unquestionably confident that the Air Force will remain healthy enough to carry out its critical national defense mission even if plaintiff remains unvaccinated and is not forced to retire,” Judge Tilman “Tripp” Self wrote.
The plaintiff’s claim that the vaccine mandate violates the First Amendment and the broader Religious Freedom Restoration Act is likely to succeed in court, the judge added.
The unnamed officer has served in the Air Force for more than 25 years and now works at Robins Air Force Base, Georgia. She was required to be fully vaccinated by Nov. 18, 2021, or two weeks after the Air Force’s deadline for active duty airmen and guardians to get their final shot in a one- or two-dose series.
People who are fully vaccinated are drastically less likely to contract, become severely ill or die from the coronavirus compared to unvaccinated Americans, according to the Centers for Disease Control and Prevention. More than 77.8 million Americans have been infected by the coronavirus, and 920,000 have died since the pandemic began in late 2019.
The Air Force officer “sincerely believes that receiving a vaccine that was derived from or tested on aborted fetal tissue in its development would violate her conscience and is contrary to her faith,” according to court documents.
Pfizer and Moderna’s mRNA products used cells replicated from a fetus aborted in the 1970s to make sure their vaccine worked in human cells. The fetal cells were not used to produce either vaccine, National Geographic reported last fall.
Johnson & Johnson uses cells replicated from a fetus aborted in 1985 to produce its vaccine, but those cells are filtered out from the final product.
The issue continues to worry people of multiple faiths, which prompted religious leaders to weigh in. Facing questions about whether the mandate clashes with doctrine, the Vatican has reassured Catholics that receiving shots with ties to abortion is morally acceptable.
“The morality of vaccination depends not only on the duty to protect one’s own health, but also on the duty to pursue the common good,” the Vatican said.
The airman who filed the lawsuit contracted COVID-19 in December 2020 and fully recovered. She said she tested positive for antibodies in both January and December 2021. The federal vaccination mandate does not allow employees to claim natural immunity in lieu of receiving the shots.
Judge Self questioned whether vaccines do offer better protection against the virus than prior infection, citing recent cases among vaccinated, high-ranking defense officials and in the public at large.
The CDC urges Americans to get vaccinated even if they’ve already had the virus, noting one study that showed “those who do not get vaccinated after their recovery are more than two times as likely to get COVID-19 again than those who get fully vaccinated after their recovery.”
The officer applied for a religious exemption on Oct. 13, 2021, and was denied two weeks later, Self wrote. She appealed the decision but was rejected by Air Force Surgeon General Robert Miller, who cited the negative impact it would have on military readiness and public health.
Rather than get the shots or face punishment while remaining in the service, the woman opted to ask to retire early.
She believes leaving the service will cost her more than $1 million in salary and benefits she would have otherwise earned.
Self, a former Army artillery officer and the son of an Air Force veteran, contends that because the vast majority of the Air Force is fully vaccinated and therefore safer, it’s unreasonable to force the plaintiff to choose between inoculation and losing her livelihood.
In particular, he called out the Air Force’s slowness to approve religious waivers while it green-lit medical exemptions. As of Monday, the service had approved nine religious accommodation requests and more than 3,200 medical and administrative waivers.
“The Air Force had granted over 1,500 medical exemptions by the time we filed this lawsuit, but not a single religious exemption,” said one of the woman’s attorneys, Thomas More Society senior counsel Stephen Crampton, in a press release. “After we filed, it suddenly decided to start granting or claiming to grant religious exemptions, albeit only a handful.”
More than 6,000 troops are currently listed as having pending or disapproved religious exemption requests. The service had booted 160 active duty airmen for being unvaccinated as of Monday.
“The court easily finds that the Air Force’s process to protect religious rights is both illusory and insincere. In short, it’s just ‘theater,’” Self wrote, quoting another judge who issued a temporary injunction for Navy SEALs in a similar case earlier this month.
He declined to issue a more sweeping injunction that would let anyone who wanted to skirt the vaccination mandate do so, saying only a nationwide class-action lawsuit would warrant it.
It remains to be seen whether the case will proceed to trial.
“The court absolutely understands that judges don’t make good generals,” Self wrote. “But, by that same token, it’s a two-way street: Generals don’t make good judges — especially when it comes to nuanced constitutional issues.”
Rachel Cohen is the editor of Air Force Times. She joined the publication as its senior reporter in March 2021. Her work has appeared in the Washington Post, the Frederick News-Post (Md.), Air and Space Forces Magazine, Inside Defense, Inside Health Policy and elsewhere.