Correction: A previous version of this story misstated the name of Novavax’s COVID-19 vaccine. It is currently known in the United States as “NVX-CoV2373.″
A federal appellate judge has dealt another blow to the military’s coronavirus vaccine mandate by allowing a high-profile class-action lawsuit against the Air Force to move forward.
The U.S. Court of Appeals for the Sixth Circuit in Cincinnati opted to keep the case’s class-action status in an order issued Sept. 9. The three-judge panel also said it plans to fast-track the government’s appeal of an earlier district court ruling that favored the unvetoed plaintiffs who are suing on religious freedom grounds.
Judge Raymond Kethledge’s court order pushed back on the military’s argument that stopping the mandate would cause “irreparable harm” by requiring the Department of the Air Force to retain nearly 10,000 troops who can’t — or aren’t allowed to — fully carry out their duties because they aren’t vaccinated against COVID-19.
“Those are all the very same harms that the department imposed on itself when, to its credit, it chose to grant temporary exemptions to service members” awaiting a final decision on their religious accommodation requests, the order said.
Oral arguments in the appellate case are scheduled for Oct. 19. The court plans to decide the outcome in November.
The court suggested that instead of enforcing a service-wide vaccine mandate and granting individual exemptions, the Air Force may be better off allowing troops to opt into the mandate instead.
Doster v. Kendall in U.S. District Court in the Southern District of Ohio brings together about 10,000 airmen and Space Force guardians under a class-action suit that argues the military is unfairly forcing people to receive a vaccine, which they object to on religious grounds, or lose their job.
The group includes anyone in the active duty Air Force and Space Force, Air Force Reserve, Air National Guard, U.S. Air Force Academy and Air Force Reserve Officer Training Corps who have asked for a religious exemption to the vaccine since Sept. 1, 2021, showed a sincere religious belief opposing the jab, and whose requests were denied or are not yet settled.
Most of them say they oppose any connection to fetal cell lines or tissues that were derived from aborted fetuses years ago.
Pfizer and Moderna’s mRNA products used cells replicated from a fetus aborted in the 1970s to make sure the vaccines 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.
Other vaccines that claim not to have remote ties to abortion practices, like India-made Covaxin and another made by the American company Novavax, are available now as well.
In allowing the class-action status to remain, the court said the plaintiffs don’t have to prove that the Air Force has created a literal policy opposing religious exemptions to the COVID-19 vaccines or that it is denying every single one.
But plaintiffs do have to show a trend in how the Air Force is handling cases that it claims are subject to individual scrutiny, the court order said.
“All those exemptions were granted to service members who were separately eligible for an administrative exemption” because they could soon separate or retire from the Air Force, the order said. “Thus the record suggests that, at present, the number of exemptions that the department has granted on religious grounds stands at zero.”
More than 97% of the 497,000 or so uniformed members in the Air Force and Space Force were fully vaccinated as of Sept. 7, the service said.
According to the Centers for Disease Control and Prevention, more than 95 million COVID-19 cases have been recorded in the U.S. since the pandemic began in late 2019. More than 1 million Americans have died.
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.