U.S. District Judge Matthew McFarland, a Trump appointee, entered a preliminary injunction against the military branch.
Two weeks earlier, MacFarland issued a temporary restraining order. He asked the military to make its case as to why he shouldn’t enter a preliminary injunction, which is a longer-lasting measure.
In a 16-page filing, government lawyers said blocking the military from punishing unvaccinated members “would interfere with ongoing legal proceedings and would otherwise be improper, particularly in light of significant new developments.”
Among the developments, they pointed to U.S. drug regulators authorizing a COVID-19 vaccine made by Novavax. Unlike the three vaccines previously available in the United States, the Novavax vaccine doesn’t use fetal cells in its development, manufacturing, or production, government lawyers said, echoing statements from Novavax that have been disputed by some outside groups.
“Those class members whose religious objections were based on mRNA technology or the use of fetal-derived cell lines are no longer substantially burdened by the COVID-19 vaccine requirement because this option is now available,” the lawyers said.
Included in the opposition was a declaration from Lt. Gen. Kevin Schneider, director of staff for the Air Force’s headquarters. He claimed that unvaccinated members “are at a higher risk of contracting COVID-19 and substantially more likely to develop severe symptoms resulting in hospitalization or death” and that exempting a large number of airmen “would pose a significant and unprecedented risk to military readiness and our ability to defend the nation.”
Of the 14 Air Force members who died from COVID-19 since March 14, 12 were unvaccinated, according to Schneider.
McFarland wasn’t convinced.
“Defendants fail to raise any persuasive arguments,” he said.
Chris West, an attorney representing the plaintiffs, called the ruling “such a big win” on Twitter.
The Air Force has approximately 497,000 members. Of those, 97.1 percent have received a primary series of a COVID-19 vaccine as of July 11.
About 1,440 exemptions to the mandate have been granted, including 104 religious exemptions. Another 2,847 are pending, and 6,803 have been rejected.
The small number of religious exemptions granted is “farcical,” McFarland said earlier this year. He said the Air Force “‘has effectively stacked the deck’ against service members seeking religious exemptions.”
Under the new order, the Air Force can’t take disciplinary action against or attempt to kick out members who have requested a religious exemption on or after Sept. 1, 2021, and were deemed by a chaplain as having a “sincerely held religious belief.” Most military members who apply do and were either denied or haven’t had action on their request.
Editor’s Note: This story has been updated with more information about Novavax’s vaccine.