Advocates are confident that a bill banning COVID-19 vaccine mandates will become law this session.

FORT WORTH REPORT
| Dec 28 2022

Texas lawmakers filed over 100 vaccine-related bills in the 2021 legislative session — more than in the past six sessions combined. 

Most of them sought to dilute or eliminate policies that promote vaccines. The bills ranged from softening school-entry vaccine requirements to banning COVID-19 vaccine mandates altogether. 

Although the vast majority didn’t become law, advocates on both sides of the aisle predict a similar focus in the upcoming legislative session. By Dec. 22, lawmakers in the House and Senate had already filed at least 20 vaccine-related bills.

The quantity and tenor of the bills signal a shift toward a more polarized view of vaccines, which were once a predominantly bipartisan issue in Texas. They’re also likely to result in legislation that will limit vaccine requirements across the state.

Most of the vaccine-related bills already filed seek to protect personal choice when it comes to vaccines. Of those, half are COVID-19-specific. 

For example, identical bills filed by state Rep. Brian Harrison, R-Waxahachie, and state Sen.-elect Mayes Middleton, R-Wallisville, would ban COVID-19 vaccine mandates and prohibit penalties based on COVID-19 vaccine status. For example, employers from private businesses to government agencies could not fire an employee for choosing not to get the COVID-19 vaccine. 

Other bills discourage mandates by penalizing businesses that implement COVID-19 vaccine mandates or prohibiting public schools from requiring documentation of a student’s COVID-19 vaccine status. 

Still other bills apply to vaccines generally. For example, another bill by Harrison would remove state health agencies’ ability to modify or add immunization requirements for students without a statute. 

Texas has a long history of vaccine legislation, with legislative milestones that both restrict and expand the reach of vaccines. 

In 2003, the state passed a law allowing families to opt out of school-mandated vaccines without a medical exemption. In the nearly two decades since, the annual number of students forgoing vaccines has increased over 2,700%, according to a November 2020 report from Rice University’s Baker Institute for Public Policy.

Then, in 2011, Texas became the first state in the U.S. to require every college student to be vaccinated against bacterial meningitis. The shift came after the highly publicized illnesses of two students at The University of Texas and Texas A&M, the first who lost her legs and fingers to the disease and the second who died. 

The law, filed by then-state-Sen. Wendy Davis, D-Fort Worth, received bipartisan support. 

For years, many did. Between 2009 and 2019, Texas lawmakers filed just over 100 vaccine-related bills. About one in five passed, and the majority were bipartisan-backed, according to the report from the Baker Institute for Public Policy. Roughly half were neutral toward vaccines — they dealt with immunization data collection, for example, or the creation of vaccine-related studies. 

In 2021, however, over 60% of filed vaccine legislation sought to dilute or dissolve policies that promote vaccines. These bills were filed by Republican lawmakers, said Rekha Lakshmanan, chief strategy officer for The Immunization Partnership, a Houston-based nonprofit that works to increase the state’s vaccination rates. 

She attributes the shift, in part, to rhetoric during the pandemic that solidified immunization as a civil liberties issue. 

Lakshmanan co-authored an analysis of hearing testimony from the 2021 legislative session. According to the analysis, people who testified against vaccines or mandates were likely to cite a desire for medical freedom or protection from discrimination based on vaccine status. 

The autonomy argument isn’t new. In 2015, after a measles outbreak in California that officials said emerged because of low vaccination rates, a Texas Republican lawmaker filed a bill that sought to remove nonmedical exemptions from vaccine requirements for students. 

In response, a Texas mom created a private Facebook group for worried parents. Within weeks, the group had more than 1,300 members, according to The Texas Tribune. Within months, it had turned into a political action committee and a 501(c)(4) nonprofit under the same name: Texans for Vaccine Choice

The group’s fervor seemed to work: The lawmaker chose not to re-file his bill. And since the pandemic, Texas for Vaccine Choice has gained further attention.

“When (Texans for Vaccine Choice) emerged as an effective and influential organization of concerned citizens in 2015, elected officials took notice and many understood that medical liberty is important to their voters,” Rebecca Hardy, board president of Texans for Vaccine Choice, wrote in an email. 

The group is publicly supporting a number of bills, including those filed by Harrison and Middleton. 

But focusing on the ongoing tension between public health and medical freedom only tells part of the story, said Dr. David Capper, a physician and medical ethicist in Fort Worth. Capper has served on a number of hospital ethics committees in Tarrant County.

Early mandates for employees to get the COVID-19 vaccine, like those from hospital systems throughout Texas, came before the U.S. Food and Drug Administration fully authorized the Pfizer vaccine. 

Many people who were initially hesitant to get the vaccine were concerned about its safety, rather than their own autonomy, Capper said. 

In March 2021, for example, a Pew Research survey found that most respondents who weren’t planning to get the COVID-19 vaccine were worried about potential side effects and the vaccine’s fast-paced development process.

The FDA’s initial emergency use authorization of the COVID-19 vaccine is a “monkeywrench” in the conversation about vaccine legislation, Capper said. “You have to think of vaccines not as a singular entity.”

While emergency use authorization includes many of the same regulatory steps as full FDA approval, the timeline is expedited during a public health emergency. The FDA only grants emergency use authorization when the known and potential benefits of the treatment outweigh the potential risks, according to Yale Medicine. 

The agency can retract the authorization at any point based on available data. For example, in March 2020, the FDA issued an emergency use authorization for the anti-malaria drug hydroxychloroquine to treat COVID-19. Within three months, the agency revoked it after concluding the medicine’s risks outweighed the benefits. 

“There needs to be an assurance that (a person’s) personal health is preserved with the administration of any vaccine,” Capper said. Otherwise, he said, autonomous decision-making has justification.

For Lakshmanan, with The Immunization Partnership, liberty matters too: the liberty not to worry about vaccine-preventable diseases like measles and polio. 

Vaccination can protect not only the person who received the vaccine, but people around them who can’t get vaccinated because they’re too young, too old or immunocompromised, according to the U.S. Centers for Disease Control and Prevention. 

Both measles and polio were once declared eliminated in the U.S., but recent outbreaks driven by low vaccination rates have brought them top-of-mind again. 

Lakshmanan is particularly wary of one already-filed bill that she said erodes reliance on medical experts to determine which vaccines should be mandatory. 

“When it comes to health issues, I want advice from medical experts who spent decades of their professional careers researching and understanding or even practicing medicine,” she said. 

HB 807, filed by Harrison, would disable the Texas Health and Human Services Commission and the Texas Department of State Health Services from mandating vaccines for students beyond an already set list. Instead, updates would require a statute. 

The current list of mandatory vaccines does not include chickenpox, meningococcal or COVID-19, meaning lawmakers would need to pass legislation to require students get those vaccines. 

If HB 807 were to become law, Harrison said, medical experts from around the world could come in and testify when lawmakers consider adding a new vaccine to the list. “Our decisions would be way better informed by scientific and medical expertise as a result of my bill,” he said.

But hearings can also become a platform to lend legitimacy to arguments against vaccines and science, Lakshmanan said, including those that spread misinformation. 

“Having a legislative hearing is a precious thing,” she said. “I mean, it’s an opportunity to have people share their views and their support or their concerns on a piece of legislation.”

She added that the public relies on lawmakers to be “good stewards of the process” and make sure people receive accurate information.

Of the many bills filed last session that sought to limit policies that promote vaccines, a few received a legislative hearing, but only one became law: SB 968, which included language that prohibits businesses from requiring customers to provide proof of COVID-19 vaccine status. 

Lakshmanan said she expects lawmakers to file a similar influx of bills that limit vaccine policies this session. 

The thought is a somber one, said Dr. Jason Terk, a pediatrician in Keller who chairs the Texas Public Health Coalition, a conglomerate of health organizations committed to disease prevention. For years, he’s spoken out against nonmedical exemptions to vaccines.

Terk said he began practicing around the time when Andrew Wakefield, a now-discredited physician, published an inaccurate study linking autism with vaccines. Although the study was formally retracted, the misinformation reverberated for years.

“The damage was done,” Terk said. “And it sort of moved me to a place where I realized that if we don’t defend vaccines, then they will be eroded.”

Wakefield, who continues to defend his conclusions despite many large epidemiological studies refuting them, moved to Austin in 2004. 

Harrison, the Republican lawmaker, also worries about vaccine hesitancy. “I attribute it almost exclusively to the push to mandate the COVID-19 vaccine,” he said. 

In a survey-based study published earlier this month in Vaccine, a peer-reviewed medical journal, responses suggested that, overall, COVID-19 vaccine mandates were unlikely to change people’s vaccine plans. 

However, research on behavior has found the opposite. After a Disneyland measles outbreak prompted California lawmakers to eliminate nonmedical exemptions, for example, the share of kindergartners vaccinated between 2014 and 2016 increased 20-30 percentage points. 

Harrison himself is fully vaccinated and, during the Trump administration, helped launch Operation Warp Speed. He continues to encourage people to ask their doctors about vaccines, he said. Most of all, though, he wants to protect Texans’ ability to decide whether to get vaccinated.

Harrison first filed HB 81, which he calls the Texas COVID-19 Vaccine Freedom Act, in October 2021, days before the final special session ended. In its short life, the bill, which would ban all COVID-19 vaccine mandates in Texas, amassed nearly 50 Republican co-authors. 

He’s optimistic the bill will pass this time. The Republican Party of Texas’ State Republican Executive Committee has already endorsed it.

And on Dec. 4, Gov. Greg Abbott tweeted that he expects the Texas Legislature to ban “any” COVID-19 vaccine mandate in Texas in the upcoming session.

For Terk, with the Texas Public Health Coalition, the prediction is grim. “​​We’re pretty discouraged and pessimistic about the prospects for vaccines this session,” he said. 

As for Lakshmanan, she’s choosing to remain hopeful that vaccine legislation passed this session will garner bipartisan support — and increase immunization rates for Texans. 

“I think that’s what we should be known for: sensible, reasonable immunization policies that, at the end of the day, are there to ensure people can live safe, healthy, happy lives,” she said. “And don’t have to worry about measles or polio lurking in the shadows or around the corner.”

Alexis Allison is the health reporter at the Fort Worth Report. Her position is supported by a grant from Texas Health Resources. Contact her at [email protected] or via Twitter. At the Fort Worth Report, news decisions are made independently of our board members and financial supporters. Read more about our editorial independence policy here.