Texas lawmakers supported a statewide vaccine mandate a decade ago. Now they're resisting one for COVID-19

A nurse administers a dose of the Pfizer vaccine at a clinic organized by the Travis County Mobile Vaccine Collaborative at Rodriguez Elementary School on July 28, 2021. Credit: Sophie Park/The Texas Tribune

In 2011, the Texas Legislature led the country and overwhelmingly passed the first law requiring meningitis vaccines for students under 22 enrolling in college.

Ten years later, lawmakers have been asked to again consider a vaccination mandate. This time, amid the COVID-19 pandemic, the idea is facing a much more skeptical reception.

Whether to issue protective measures against COVID-19 and who can decide such requirements have been debated throughout the summer as the highly contagious delta variant continues to spread across the state and country with local jurisdictions and the state battling mask mandates in courts across Texas.

The decision to mandate a COVID-19 vaccine, a version of which received full approval from the federal U.S. Food and Drug administration three days ago, has been off the table for local governments since Gov. Greg Abbott issued an executive order banning mandates for vaccines that were under emergency use authorization.

Two days after the FDA fully approved the Pfizer vaccine on Monday, Abbott issued a new executive order Wednesday banning all vaccine mandates by local governments, regardless of emergency status. But he also asked the Legislature to consider whether a statewide mandate was appropriate, along with potential exemptions.

"Vaccine requirements and exemptions have historically been determined by the Legislature, and their involvement is particularly important to avoid a patchwork of vaccine mandates across Texas," Abbott said in a statement Wednesday.

He added the topic to the list of items lawmakers could consider during the current special session of the Legislature.

So far, Texas lawmakers appear to be sticking along party lines as they approach Abbott’s request, mirroring a nation deeply divided over the vaccine based on political party. Abbott himself has faced backlash from the right wing of his party for other emergency actions to address the pandemic, like the shuttering of businesses last year.

Democratic lawmakers have filed legislation to add COVID-19 vaccines to the list of the vaccines required of Texas schoolchildren, allow school districts to follow the pandemic rules implemented by their local health authorities and to let schools decide their own mask policies.

Sen. Sarah Eckhardt, D-Austin, recently filed a bill that would add COVID-19 vaccines to the list of required vaccines for students in K-12 schools.

"There’s every reason for adding COVID-19 vaccination in with those other vaccine requirements," she said. "I’d think that would be a no-brainer given what we’re facing."

Meanwhile, Texas Republicans have filed bills to prohibit the mandatory vaccination of students in Texas schools.

Historically, public K-12 schools, community colleges and universities have required a variety of vaccines for students, who routinely come in contact with each other in the classroom or residence halls, and viruses are more likely to spread. That has drawn questions about why a mandate for COVID-19 shouldn’t be imposed now that the vaccine is FDA approved.

Texas public schools currently require K-12 students to get vaccinated for tetanus, polio, measles, mumps and rubella, hepatitis B, chickenpox, meningitis and hepatitis A. College students are required to receive a meningitis vaccination, too. Health care and veterinary students are required to get additional vaccines for rabies, tetanus-diphtheria and hepatitis B.

But those requirements have become accompanied by various exemptions as state lawmakers have relaxed requirements, which have increasingly allowed parents and students to opt out of vaccinations.

Texas lawmakers loosened exemption restrictions for vaccines in public schools in 2003 as an amendment in a larger bill, expanding acceptable nonmedical exemptions by adding "reasons of conscience." It also allowed for doctors to also approve a medical exemption if they believe a vaccine would "pose a serious risk," rather than the previous requirement that it would "be injurious" to a child. Lawmakers approved the amendment with five minutes of discussion.

Since that time, the number of people requesting vaccine exemptions has skyrocketed. The number of kindergartners who have enrolled in Texas public schools with one or more vaccine exemptions increased from 0.3% in the 2005-06 school year to 2.46% in the 2020-21 school year, according to state health department data.

When the Legislature approved the meningitis vaccine requirement for colleges and universities, it included a provision that would allow students to opt out for medical or religious reasons. Conscientious objectors have to request an affidavit from the Texas Department of Health and Human Services and submit it to their local institution. At the time, some state lawmakers and advocates opposed the meningitis mandate, including former Rep. David Simpson, a Longview Republican.

"I’m for freedom," he told the Tribune in 2011. "I’m not for the government dictating to us what we must do with our bodies."

Ultimately, Texas lawmakers overwhelmingly supported expanding the meningitis requirement to include all college students, with 29 out of 31 Texas senators voting for the bill and 122 Representatives casting a vote in favor, with 14 nays.

But the sentiment against vaccine requirements has grown stronger as the state’s political center has shifted further right.

Dan Patrick, a staunch social conservative who was one of only two senators to vote against the meningitis requirement, now leads the chamber as the state’s lieutenant governor.

Patrick did not respond to requests for comment about his position on current vaccine mandates. Neither did House Speaker Dade Phelan, also a Republican.

The continued polarization of state politics means Republican lawmakers are more likely to support measures that encourage vaccines and allow people to opt in, rather than mandating such measures and forcing people to opt out, which requires a student to get a doctor’s signature or a request an affidavit from the state health department to submit as a conscientious objector.

Sen. Kel Seliger, R-Amarillo, said he currently prefers the encouragement route and would not support a statewide vaccine mandate because of the unknown long-term effects of the COVID-19 vaccine due to its recent development.

"Ultimately, if it becomes mandatory, I think that’s a good idea," he said. "But at this point, I’m comfortable with opt in."

Seliger said he felt comfortable voting to require a meningitis mandate in 2011 because the meningitis vaccine had been around longer. Sen. Lois Kolkhorst, R-Brenham, the chair of the Senate Health and Human Services Committee, did not respond to an interview request. She voted for the meningitis vaccine requirement when she led the public health committee in the Texas House in 2011.

For the Pfizer COVID-19 vaccine, the FDA said it followed more than half of the 40,000 vaccine trial participants for four months after receiving the shot and 12,000 participants for six months. Major side effects were found to be extremely rare, and the risk of contracting them was determined to be far less than the risk of getting COVID-19. According to the Centers for Disease Control and Prevention, some people who have contracted COVID-19 have experienced long-term conditions for four or more weeks, though most people recover in a few weeks. More than 54,000 people have died of COVID-19 in Texas and nearly 14,000 are currently hospitalized with the virus.

Seliger said he did not approve of Abbott’s "authoritarian stance" when it came to executive orders preventing local leaders from issuing those measures, but he stopped short of saying he would support legislation that would allow local jurisdictions to mandate vaccines locally without an ability to opt out for matters of conscience.

A few local leaders have opted to defy Abbott’s limits on their pandemic mandates.

The San Antonio Independent School District called for mandatory employee vaccinations last week, drawing a lawsuit from Attorney General Ken Paxton. The FDA’s full approval of the Pfizer vaccine spurred the district’s officials to move forward with their plan to vaccinate all employees.

Sen. José Menéndez, D-San Antonio, said he supported local governments being allowed to set their rules on COVID-19 vaccinations.

"At a minimum, that’s what we should be doing," said Menéndez, who had a breakthrough case of COVID-19 earlier this month despite being vaccinated. "I personally think that for the best interest of the 30 million Texans and especially the 6 million kids in the state that can’t be vaccinated, we owe it to them so they don’t have to go through this."

The Texas Legislature has considered other various vaccine requirements over the years, and in 2007 it reversed an executive order by then-Gov. Rick Perry that mandated the vaccination of Texas schoolgirls entering the sixth grade for the human papillomavirus, a common sexual infection that can lead to cervical cancer.

Menéndez, who has served in state politics for more than two decades, said a COVID-19 vaccine requirement would be different from Perry’s attempt to mandate HPV vaccines.

As a state representative, he voted with a veto-proof majority of both chambers in favor of a law to reverse Perry’s decision. Many lawmakers were suspicious of Perry’s ties to the Merck pharmaceutical company, which had manufactured the vaccine and was the only one offering it. The company had contributed money to his political campaigns and Perry’s former chief of staff was hired as a Merck lobbyist.

The vaccines also were not free and the state would have had to pay for parents who couldn’t vaccinate their children, Menéndez said. The coronavirus vaccines are being offered free of cost.

There are also three different companies offering COVID-19 vaccines, he said, compared with the one under the 2007 mandate.

"It’s completely different," he said. "There was no HPV pandemic. 600,000 Americans had not died of HPV," referencing the number of people who have died from COVID-19 since the pandemic began.

Perry walked back his decision to mandate the virus a few years later in 2011 when he campaigned for the Republican presidential nomination, calling it a mistake.

Eckhardt, the former top elected official of Travis County, said regardless of what the lawmakers ultimately approve, she’s concerned the Legislature works too slowly to effectively address issues like pandemic response and local leaders are best positioned to know how to help their constituents. She criticized Abbott for shifting the responsibility onto the legislative branch.

"Placing it on the call for the state Legislature would telegraph at least to me that the executive office was uninterested in leading on this," she said.

Disclosure: Texas Department of Health and Human Services has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

This article originally appeared in the Texas Tribune.

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