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Lawyer: New anthrax rules may face resistance

North County Times, By: JOE BECK - Staff Writer

NORTH COUNTY ---- The Defense Department's decision to revive mandatory anthrax vaccinations for parts of the military has failed to quiet critics of an earlier round of vaccinations in which some service members cited health risks in refusing to be inoculated.

Mark Zaid, a lawyer who represented about a dozen members of the military in court cases involving their refusal to submit to vaccinations, predicted a new wave of resistance to the Pentagon's latest anthrax vaccinations at Camp Pendleton and Miramar Marine Corps Air Station. Several of his clients have come from Miramar and the Marine base at Twentynine Palms.

"I wouldn't doubt if Pendleton and Miramar are going to get some refusals, especially among the younger kids," said Zaid in a telephone interview from Washington, D.C.

The Defense Department announced last week that the mandatory vaccination program would resume in 30 to 60 days, ending a suspension that began nearly two years ago. Voluntary vaccinations were reintroduced in 2005.

The Pentagon's announcement said the vaccines would be required for those deploying to areas such as the Korean Peninsula, the Middle East and Central Asia, where the risk of anthrax being used as a weapon by hostile forces is deemed to be higher than average.

Zaid said the anthrax vaccination program will be challenged again. A federal judge temporarily halted the program in December 2004.

"We're going to file another lawsuit to shut down the mandatory program," said Zaid, who represented a Miramar Marine in the 2004 case.

Officials at Camp Pendleton and Miramar were asked to respond to questions from the North County Times about the vaccination program. Miramar officials did not reply and those at Camp Pendleton e-mailed a series of questions and answers prepared at Marine Corps headquarters in the Pentagon.

Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs, has said that about 50 percent of service members being deployed to high-risk areas have received the vaccination under the voluntary program, a rate that Winkenwerder called unacceptable, according to transcripts of a news conference he held last week.

"This rate of vaccination not only put the service members at risk, but also jeopardized unit effectiveness and degraded our medical readiness," Winkenwerder said during that conference. "Both of those issues are important to me and our military commanders."

The safety and effectiveness of the vaccine have been debated since the late 1990s, when some service members began refusing mandatory vaccinations. Some were court-martialed or received lesser punishments for refusing to follow orders. Meanwhile, Zaid and other lawyers filed lawsuits challenging the legality of mandatory vaccinations.

Lance Cpl. Ocean Rose, formerly based at Miramar, was one of those who paid a price for refusing the vaccine. In a telephone interview, he said he received a bad conduct discharge, an action that has been placed on hold while he continues to appeal the discharge. For now, Rose said he retains his rank as lance corporal in the Marines, although he has returned to his hometown in Georgia, does not participate in military activities and receives no military pay.

Rose, 26, said he objected to the anthrax vaccination after a routine electrocardiogram revealed a serious heart problem. He said his heart appeared healthy at the time he entered the Marine Corps and has shown no signs of problems in tests run several years after he received the vaccine.

"I only had problems during the time I was receiving anthrax vaccine," Rose said.

Defenders of the mandatory vaccine program insist it poses little risk to most people and is necessary to lessen the threat of any attempt by hostile forces to use anthrax on the battlefield.

"The vaccine has been thoroughly reviewed by eight different bodies, including the National Academy of Sciences Institute of Medicine," Winkenwerder said. "The Institute of Medicine states that the adverse events after anthrax immunization are comparable to those observed with other vaccines administered to adults."

Zaid said he plans to challenge the Food and Drug Administration's December 2005 ruling that the vaccine is safe and effective.

Those resisting the vaccine took heart a year earlier, when U.S. District Court Judge Emmet Sullivan ordered the program shut down, citing the FDA's failure to meet certain procedural requirements in approving the vaccine. A three-judge panel of the U.S. District Court of Appeals for the District of Columbia lifted Sullivan's ruling after the FDA satisfied the procedural requirements.

-- Contact staff writer Joe Beck at (760) 740-3516 or jbeck@nctimes.com.