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Judge rules Pentagon can not force military to take vaccine.

Times Staff Writer

The Pentagon must stop forcing members of the military to take the anthrax vaccine against their will, unless President Bush signs a special order, a judge ruled Monday.

Department of Defense officials argued that refusing the shots puts other service members at risk.

Six plaintiffs working for the military in sworn and civilian positions filed a class action suit in May after being ordered to take the vaccine. Three obeyed the order and three did not.

The news of Monday's court ruling came to Moses Lacy of Lynwood as his family prepared to face its first Christmas since his daughter Rachael's death this spring. A coroner ruled the anthrax shots were contributing factors in the U.S. Army Reservist's death, and the Pentagon announced last month that the vaccines may have caused her death.

"That is the best Christmas present a person can have," Moses Lacy said. "I'm touched."

Rachael Lacy, 22, died in April after receiving the vaccination, along with a smallpox inoculation.

She made no attempt to refuse the vaccines, but others who have faced the consequences. Military records show some half a million service members have received the vaccine since they became mandatory in 1998.

Some servicemen and women have faced disciplinary action, even courts-marshal, for refusing the shots. Because the program is administered by military commanders -- not doctors -- refusing the shots was considered refusing an order.

Maj. Thomas "Buzz" Rempfer, of the Connecticut Air National Guard, refused to take the vaccine in 1998 and was subsequently grounded. He has been a strong voice in the fight against requiring the inoculations.

Rempfer -- speaking on his personal opinions and not on behalf of the military -- praised Monday's decision.

"The legislation that will naturally follow from this federal court decision will hopefully be enacted in memory of U.S. Army Reserve Specialist Rachael Lacy," Rempfer said. "Her ultimate sacrifice will set a precedent where our (Department of Defense) will never again be allowed to knowingly and illegally experiment on our soldiers."

Monday's decision is a preliminary injunction requested by the military personnel as part of its suit.

The risk of anthrax exposures to service members was feared to have been from anthrax weapons the military believed were being produced by Iraq and other nations.

Critics have argued for years that the vaccines were never given proper Food and Drug Administration approval for use in fighting inhalation anthrax. The Pentagon contends the vaccine is safe and effective for all forms of anthrax.

U.S. District Court Judge Emmet G. Sullivan said in his ruling Monday that the rate of adverse reaction to the vaccine was recently revised from 0.2 percent to between 5 percent and 35 percent. Six deaths have been attributed to the shots, he said.

Sullivan said the anthrax vaccinations fall under a 1998 law prohibiting the use of certain experimental drugs unless people being given the drug consent or the president waives the consent requirement.

"The women and men of our armed forces put their lives on the line every day to preserve and safeguard the freedoms that all Americans cherish and enjoy," Sullivan said in his ruling. "Absent an informed consent or presidential waiver, the United States cannot demand that members of the armed forces also serve as guinea pigs with experimental drugs."

The Pentagon had no immediate comment.

Moses Lacy said Monday that the judge's ruling echoed the sentiments he has had about the drug since Rachael's death.

"That's what I've been saying all along, that they shouldn't be giving it without informed consent," he said.

Rachael Lacy was studying to be a nurse when she was called to active duty in February. The South Suburban College student worked at a Lansing pizzeria and was a member of the 452 Combat Surgical Hospital unit out of Milwaukee, where she served as a combat medic.

Her unit arrived at Fort McCoy, Wis., on Feb. 27 to prepare for deployment to the Middle East.

She received the smallpox and anthrax vaccines along with the other soldiers in her unit within the week. Rachael began feeling ill March 17, and she went to a local emergency hospital in Sparta, Wis., about seven miles from Fort McCoy.

The doctors there began giving Rachael antibiotics, thinking she had pneumonia. She was then referred and admitted to a hospital in LaCrosse, Wis. When Rachael's condition did not improve, she was sent to the Mayo Clinic in Rochester, Minn., on April 2.

She died there three days later.

The official cause of death noted on the death certificate is diffuse alveolar damage, meaning widespread damage to the sacks of the lungs.

Contributing conditions listed on the death certificate included, "recent smallpox and anthrax vaccination."

Moses Lacy said he found "a great deal of comfort" in the judge's ruling Monday and felt his daughter's death contributed to the outcome.

"If it had not been for my daughter Rachael's passing, I think it would have continued," he said. "Nobody would have taken a good look at it.

"Certainly there have been other young men and women who have died and become ill (as a result of the vaccines), but I think my daughter's death was the spearhead that brought this to where it is right now. Although it will not bring her back, I think it should be in her honor."

The Associated Press contributed to this report.

Lauri Harvey can be reached at lharvey@nwitimes.com or (219) 933-4169.