THURSDAY, SEPTEMBER 19 , 2019. THE WASHINGTON POST EZ SU B5
BY ANN E. MARIMOWrichmond — Federal judges
pressed the Defense Department
on Wednesday to justify the U.S.
military’s refusal to deploy — and
decision to discharge — certain
service members who test HIV-
positive.
A lawsuit was filed by two air-
men slated to be forced out of the
Air Force after their r esults during
health screenings last year. The
Pentagon’s p olicy, t hey say, u nlaw-
fully discriminates against s ervice
members based on a medical con-
dition.
The Defense Department re-
stricts newly diagnosed personnel
from deploying to combat zones
such as Afghanistan. The risk of
HIV transmission, the govern-
ment says, is heightened on the
battlefield, where it may be more
difficult to maintain treatment.
The Richmond-based U.S.
Court of Appeals for the 4th Cir-
cuit was reviewing an earlier rul-
ing from federal court in Alexan-
dria that temporarily blocked the
military from enforcing its policy
nationally and from discharging
the two airmen, identified in
court papers by the aliases Rich-
ard Roe and Victor Voe.
At least four other active-duty
Air Force members f ace discharge
because of the restrictions and
hundreds of others could be af-
fected by the policy, according to
lawyers for the two. A separate
pending case in Virginia challeng-
es the Army’s similar HIV-related
policy.
In court Wednesday, Judge
James A. Wynn Jr. asked why the
military would refuse to deploy
service members with HIV but
not those with other chronic con-
ditions such as diabetes and high
blood pressure.
Judge Henry F. Floyd, too,
wanted to know, “What’s the bot-
tom-line reason they couldn’t be
deployed?”
Justice Department lawyer
Lewis S. Yelin told the court that
although the risk of transmission
is low, “it is not nonexistent” and
that the policy accounts for the
“rigors and chaos” of combat that
heighten the risk of blood-to-
blood contact or a disruption in
the supply of necessary medicine.
Wynn seemed concerned that
the policy has become more re-
strictive in the past two years de-
spite the low risk of transmission
with treatment. The government,
Wynn said, “makes it sound like
it’s a really big deal. One of these
men is only taking one pill a day.”
After the two men tested posi-
tive, doctors determined they
were physically fit to deploy and
their commanding officers
backed their continued service.
But last November they were told
they would be discharged.
The Air Force concluded that
the men could no longer perform
their duties because officials said
their medical condition prevent-
ed them from deploying to the
areas where most airmen are ex-
pected to go.
The appeals court was review-
ing a February ruling by Judge
Leonie M. Brinkema of the U.S.
District Court in Alexandria, who
chastised the government for pro-
viding “no evidence, whether an-
ecdotal or otherwise, of the effect
of HIV on a servicemember’s m ed-
ical fitness or the military’s readi-
ness.”
The two men, who have each
worked more than five years in
logistics and maintenance roles,
were not offered alternative jobs,
which they said they would have
accepted rather than facing dis-
charge. The court injunction has
allowed them to remain in their
posts pending t rial.
Justice Department lawyers
urged the appeals court in filings
to reverse the earlier ruling and to
defer to the nation’s m ilitary lead-
ers when it comes to deciding “ theamount of risk to tolerate and who
to send to the battlefield.”
Former defense secretary Jim
Mattis had made it a priority to
trim the number of service mem-
bers unable to deploy with a pol-
icy known as “deploy or get out.”
Attorney Geoffrey P. E aton, rep-
resenting the airmen with the
LGBT military association Mod-
ern Military Association of Ameri-
ca and Lambda Legal, told the
court Wednesday that the policy
violates the Air Force’s own rules
prohibiting discharge based sole-
ly on HIV status.
The third judge on the panel,
Albert Diaz, asked Eaton why the
military’s policy is irrational in
light of the unique combat envi-
ronment.
“Isn’t the military entitled to
make judgments about risks?”
Diaz a sked.
Eaton said the military’s “cat-
egorical bar” f or service members
like the two airmen ignores ad-
vances in medical treatment. “The
military’s regulations are going in
the wrong direction,” he said.
“They are no longer justified.”
A group of former military offi-
cials backed the airmen in court
filings, saying t here is no justifica-
tion for preventing HIV-positive
service members from deploying.
The policy, they said, is outdated
and without scientific support.
“The latest medical expertise
and our own collective military
experience show that these risks
are more theoretical than actual,”
according to the brief joined by
the military officials, including
Ray Mabus, who was secretary of
the Navy; Eric K. Fanning, who
was secretary of the Army; and
Deborah Lee James, who was sec-
retary of the Air Force.
“Even if such risks exist to some
small extent, they do not justify
categorically discharging service
members who in all other respects
are fit to serve. It is more damag-
ing to military readiness to deny
those service members the oppor-
tunity to deploy where they are
needed,” t he brief stated.
[email protected]VIRGINIA
Pentagon on defense in HIV lawsuit
the battle footage — now make
the Pershing’s men perhaps one
of the most decorated tank crews
of the war. The belated citations
honor their teamwork during the
battle on March 6, 1945, and re-
flect the perseverance of author
Adam Makos, who tells the crew’s
story in his book “Spearhead.”
The medals are perhaps a testa-
ment, too, to the enduring power
of the moving image. Besides get-
ting the tank duel on film, Sgt. Jim
Bates, a cameraman with the
165th Photo Signal Co., captured
the moment a few minutes earlier
when the same Panther had hit a
Sherman tank a few blocks away
and its mortally wounded com-
mander bailed from the hatch.
After the battle was over, Bates
also recorded a portrait of the
victorious American crew, i nclud-
ing Smoyer, who wore a shy smile.
Smoyer, 96 now and walking gin-
gerly with a cane, acknowledged
the honors with the same smile
and a shaky salute.
“It was just a great, great honor
and a very big surprise,” Smoyer
said afterward of his medal. “I’m
wearing it for all those who lost
their lives.”
His Bronze Star and the cer-
emony had been kept a secret
worthy of D-Day among friends
and family until Smoyer was
dropped off at the memorial on
the way to what he thought would
be a book signing.
A crowd of perhaps 100 people
was waiting, including graying
war buddies, his tank crew’s fam-
ily members, some military brass
and Sen. Patrick J. Toomey
(R-Pa.), who had championed the
medals under a law that allows
for belated nominations.
Other crew members honored
Wednesday included Pvt. Homer
L. Davis of Morehead, Ky., the
Pershing’s bow gunner; Pfc. John
DeRiggi of Scranton, Pa., whose
duty was to load the tank’s gun;
and Te ch. Cpl. William McVey of
Jackson, Mich., the tank’s driver.
The tank’s commander, Staff Sgt.
Robert Earley, received his
Bronze Star soon after the battle.
John DeRiggi, 66, who accept-
ed the Bronze Star on behalf of his
late father, said his father seldom
discussed his wartime experience
and its lingering effects on him
until shortly before his death at
the age of 83 in 2005.
“I’m just so proud of him,”
DeRiggi said. “My father actually
suffered quite a bit. Part of his
face was actually ripped up by
shrapnel, and some of it they
couldn’t get out [because] it was
too close to his eye. So he lived
without complaining but had
CREW FROM B1
some issues after the war. He was
just always my hero.”
Makos tracked down Smoyer
after a college friend, Peter Se-
manoff, had suggested looking
into his story. Semanoff hadgrown up in Smoyer’s hometown
and heard tales of the soft-spoken
gunner’s bravery. On Wednesday,
Semanoff, now an Army major,
pinned the Bronze Star, along
with its “V” for valor, to Smoyer’sjacket.
Makos, the ceremony’s emcee,
drew on his book to recount the
dramatic battle for what was then
Germany’s fourth-largest city and
a key gateway to the Rhine River.Many German soldiers, sensing
that the war had been lost, sur-
rendered without a fight. But oth-
ers were willing to fight to the
death, including the crew of the
Panther that was lurking in astreet near the city’s Gothic ca-
thedral as a line of American
tanks approached.
When 2nd Lt. Karl Kellner,
finding his way blocked by debris,
halted his Sherman tank within
the Panther’s range, the Germans
opened fire.
The shell ripped into the Sher-
man, killing two crew members
and shearing off Kellner’s left leg.
Kellner tumbled out of the hatch.
Other soldiers rushed to help,
including Sgt. Andy Rooney, a
Stars and Stripes reporter who
went on to become a well-known
and irascible commentator for
CBS News. The soldiers tried to
save Kellner’s life using a tourni-
quet from a shirt sleeve but with-
out success.
Smoyer’s crew, hearing the ra-
dio traffic about the clash, knew
that it fell to them to try to knock
out the Panther, Makos said.
Their Pershing tank, a model re-
cently introduced to the battle-
field, was better armed than the
Shermans.
Earley, the commander, scout-
ed the Panther on foot, with the
cameraman’s help, before they
rolled forward into combat.
“He’s just sitting there like he
owns the place,” Earley told
Smoyer, according to Makos’s
book.
Smoyer swung the 15-inch gun
into position. Makos said Smoyer
knew the first shot mattered
most. If he missed, his fellow crew
members — men he regarded as
family — might die. He often
psyched himself up, saying to
himself, “Don’t miss, don’t miss.”
As McVey goosed the engine,
the tank rolled forward and
Smoyer let loose. What he did not
know — and Makos learned later
— was they also had a bit of luck
on their side: For an instant, the
Panther’s commander mistook
the new American tank for one of
his own, and his moment’s h esita-
tion proved costly.
“That was close,” Smoyer was
quoted as saying.
Joe Caserta, an attendee
Wednesday who had been inside
another tank that day 74 years
ago, said he was glad Smoyer and
the others received their medals.
He also recalled what it was like
to stifle one’s fears whenever he
climbed into a tank and jumped
off into battle.
“Once we jumped off, you were
scared and you wondered wheth-
er you were going to make it
another day,” said Caserta, 97, of
Ocean City, N.J. “But once you’re
in battle, the fear leaves you for a
while, and you don’t realize it
until you made it back.”
[email protected]After nearly 75 years, honors for World War II tank crew
peared by her questioning to side
with the city and dominated
much of the discussion in the
Richmond-based appeals court,
asking the government’s lawyer
at one point, “Isn’t abortion an
option related to pregnancy? It is
legal.”
Thacker also was one of three
judges on the same appeals
court panel that in July sided
with the Trump administration
over the rule. Then, Thacker
dissented from the order by the
two other judges — Allison Jones
Rushing and Julius N. Richard-
son — that blocked a decision
from a Baltimore judge saying
the funding rule could not take
effect immediately in Maryland.
That earlier brief appeals court
order set up the fuller Wednes-
day discussion.
California, Oregon and Wash-
ington also won injunctions from
lower courts to block the rule. But
in June, the U.S. Court of Appeals
for the 9th Circuit, which reviews
cases from those states, also al-
lowed the regulations to take
effect.
Planned Parenthood, the larg-
est recipient of money through
the program known as Title X,
announced in August that its
affiliates would refuse federal
funds while the lawsuits are
pending, rather than withhold
medical information from pa-
tients. Maryland also has with-
drawn from the program, a
spokesman for Gov. Larry Hogan
(R) said Wednesday.
The federal government has
never allowed local programs to
use Title X money to perform or
subsidize abortions. The rule
change, the government says,
was intended to ensure the
$286 million program is not
used to encourage or promote
abortion.
In defending the rule, the Jus-
tice Department pointed to a 1991
Supreme Court decision that up-
held similar Reagan-era regula-APPEAL FROM B1 tions prohibiting federally fund-
ed clinics from abortion counsel-
ing. Those rules were never put in
place, and the Clinton adminis-
tration required providers to
counsel patients about abortion.
The earlier rules upheld by the
high court are “virtually identi-
cal, if not more restrictive” t han
the Trump administration’s ver-
sion, Justice Department lawyer
Jaynie Lilley told the court
Wednesday.Attorney Andrew Tutt, repre-
senting Baltimore, told the court
that the rule violates a provision
of the more recently approved
Affordable Care Act, which for-
bids regulations that “interfere
with communications between
doctors and their patients.”
“The doctor-patient relation-
ship is one of full disclosure and
mutual trust,” he said.
Thacker, who was nominated
to the bench by President Barack
Obama, agreed and particularly
objected to the requirement that
any referral list not disclose
which providers perform abor-
tions, even for a patient who
indicates she wishes to end her
pregnancy.
“Does the patient know which
physicians perform abortions?”
the judge asked.
“No, your honor,” Lilley re-
sponded.
“How is that providing pa-
tients full disclosure of all the
relevant information? She needsto go down the list and call
everybody?” Thacker asked.
Richardson noted that Balti-
more would not be required to
provide such a list.
“HHS is not dictating what
Baltimore does,” he said.
The appeals court was re-
viewing a decision by U. S. Dis-
trict Judge Richard D. Bennett
of Baltimore, who said in May
that new rules create “unrea-
sonable barriers for patients to
obtain appropriate medical
care, i nterfering with communi-
cations between the patient and
health care provider, and re-
stricting full disclosure, which
violates the principles of in-
formed consent.”
Requiring providers to refer a
patient to prenatal health care
even when the patient has ex-
pressly stated she does not want
prenatal care, for instance, is
“coercive,” not neutral, as the law
requires, the judge wrote.
Richardson on Wednesday
asked the lawyer representing
medical organizations in support
of Baltimore w hether the require-
ment for referral to prenatal care
might be appropriate for a wom-
an’s health regardless of her final
decision.
The lawyer, Douglas Hallward-
Driemeier, responded that such a
referral would be inappropriate.
Rushing picked up on the gov-
ernment’s distinction between
barring referrals for an abortion
and what it described as neutral
counseling that does not direct a
specific outcome. She noted that
programs are not “prohibited
from mentioning” abortion.
Richardson and Rushing are
recent additions to the Rich-
mond-based appeals court and
were nominated by President
Trump.
Federally funded clinics in Bal-
timore served 7,670 clients in
2017, and the city credits the
program with helping to reduce
teen pregnancy by 55 percent in
the past decade.
[email protected]Baltimore challenge to federal abortion
restriction comes before appeals court
“The doctor-patient
relationship
is one of full
disclosure and
mutual trust.”
Andrew Tutt, attorney
representing BaltimorePHOTOS BY JAHI CHIKWENDIU/THE WASHINGTON POSTTOP: Buck Marsh, left, 96,
tries on the military helmet
of Brendan Barclay, right, in
front of a Sherman tank
near the National World
War II Memorial on
Wednesday. Marsh was in
the same battalion as
Clarence Smoyer, 96, who
was awarded a Bronze Star.
LEFT: Smoyer’s medal on
Wednesday comes nearly
75 years after he destroyed a
Nazi tank in a dramatic
battle on March 6, 1945, in
the shadow of Cologne’s
Gothic cathedral. The
belated honors make the
men of his Pershing tank
perhaps one of the most
decorated crews of the war.Appeals judges question
denial of deployment,bid to discharge 2 airmen
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