Stay in the Know

The One-Hundred-Year-Old Vaccine Debate

What is the background of the anti-vaccine movement?

A person’s reluctance or refusal to be vaccinated for COVID-19 is a current, contentious discussion in the United States. However, vaccine rules and regulations are not a new area of debate. In Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), the Supreme Court ruled that state and local governments could require persons within their jurisdictions to be vaccinated against preventable diseases. Henning Jacobson, more than 100 years ago, cited his distrust of the science behind vaccination and argued that his liberty was infringed by a vaccine requirement.  The 1905 disease in question was smallpox and the Supreme Court upheld a Cambridge, Massachusetts regulation requiring all residents of the city to be vaccinated with limited exceptions for children if certified by a physician. The Court acknowledged the right to individual liberty under the Fourteenth Amendment but stated, “in every well-ordered society … the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”  An anti-vaccination movement took hold shortly after the decision issued by the Supreme Court.  In 1922, the Supreme Court again upheld the government’s ability to require vaccination in Zucht v. King, 260 U.S. 174 (1922).  In this case, the city of San Antonio enacted an ordinance to require students to present proof of vaccine for smallpox to attend public school or other places of education, such as private school. In the brief opinion, Zucht reiterated the finding in Jacobson which had “settled that it is within the police power of a state to provide for compulsory vaccination.” One hundred years later, the Jacobson and Zucht cases have been cited by various local governments as supporting stay-at-home orders and mask mandates during the COVID-19 pandemic. However, the federal government to date has not supported a mandate to force individual states to require vaccinations. The emergency use authorization of the COVID-19 vaccine may well be a factor. Furthermore, the Jacobson and Zucht cases more clearly pave the way for local governments such as states and municipalities to issue such vaccine mandates, not the federal government.

Who makes vaccines mandatory for schools?

Who currently decides the required vaccines for school attendance? State governments establish vaccination guidelines for schools, and these vary from state to state. There are 44 states that allow religious exemptions and 15 states that allow philosophical exemptions.  All states allow exemption from vaccinations for valid medical reasons. Religious exemptions have very recently been put to the test. As of January 1, 2016, the state of California does not allow personal or religious belief exemptions but accepts valid medical exemptions from school vaccine requirements. Similarly, the state of New York does not allow non-medical exemptions to school vaccine requirements such as religious exemptions.  In June 2019, New York banned religious exemptions from required vaccinations for school attendance due to measles outbreaks occurring in the state. The state of New York was promptly sued by a group of parents claiming discrimination based on religion. In F.F. v. State of New York, the March 2021 ruling from the State of New York Supreme Court, Appellate Division Third Judicial Department, upheld the ban on religious exemptions, stating that the ban protects the public’s health, and it did not prevent the free exercise of religion. To date, California K-12th grade schools and New York K-12th grade schools do not require COVID-19 vaccination for school attendance.

In Texas, the law states that each student in K-12th grade schools shall be fully immunized against diphtheria, rubeola (measles), pertussis, rubella, mumps, hepatitis B, varicella (chickenpox), hepatitis A, meningococcal, tetanus, and poliomyelitis with exceptions. In Texas, the Department of State Health Services (DSHS) may require additional immunization against other diseases beyond those listed by this statute for admission to any elementary or secondary school. Tex. Ed. Code 38.001(a)(b) and 25 Tex. Admin. Code 97.63.  

What are the vaccine exemptions in Texas?

Regardless of any future inclusion of the COVID-19 vaccine in Texas laws and regulations, exemptions are likely to remain embedded in Texas law. Unlike California and New York, exemptions allowed in Texas include “reasons of conscience, including a religious belief.” Such exemptions were enacted in many states to address citizen concerns, like those of Mr. Jacobson in 1905, about vaccination. Pursuant to the Texas Education Code (TEC) Section 38.001(c)(1)(A), immunization is not required for admission into elementary or secondary school if the person submits to the school district an affidavit or certificate signed by a U.S.  physician who states that the immunization required poses a significant risk to the health and well-being of the student or any member of the student’s family or household. An additional exemption from required vaccination is included in TEC 38.001 (c)(1)(B) and allows an affidavit signed by the adult student or the student’s parent or guardian stating that the student declines immunization for reasons of conscience, including a religious belief. A student claiming exemption under TEC 38.001 (c)(1)(B) must submit a form affidavit provided by the DSHS or in a manner prescribed by the DSHS.  

A frequently forgotten provision in TEC 38.001 received a lot of attention in 2020. TEC 38.001(f) states, “A person who has not received the immunization required by this section for reasons of conscience, including because of the person’s religious beliefs, may be excluded from school in times of emergency or epidemic declared by the commissioner of public health.”  In 2020, the world was suddenly in the depths of a pandemic. Though a vaccine was not available until late 2020, legislators and school districts were already contemplating how a COVID-19 vaccine may impact vaccine requirements for school attendance in Texas.  In July 2020, Texas State Representative James White submitted a request for an opinion to the Texas Attorney General’s Office regarding section 38.001(f), stating, “I am concerned that school districts may attempt to exclude students on the basis of an exemption amidst the present declared COVID-19 epidemic, even though no vaccine for COVID-19 exists.  Does the statute empower school districts to exclude students in such circumstances, even though no vaccine for COVID-19 exists?” Additionally, in 2020, school districts were examining section 38.001(f) for the right to exclude students from school who did not receive the vaccine for influenza due to health experts’ warnings that a mix of flu and COVID-19 outbreaks would make for a dire health situation in schools. The Texas Attorney General issued an opinion in March 2021. It stated that a court likely would conclude that TEC 38.001(f) does not permit the exclusion of students who lack a vaccination requirement under TEC section 38.001 (polio, measles, etc.) which is unrelated to the COVID-19 pandemic. The Texas Attorney General further went on to emphasize that students have a right in Texas to file for a religious exemption to vaccine requirements and that exclusion of students for lack of vaccination unrelated to the COVID-19 pandemic would likely be a violation of the student’s religious freedom. Furthermore, an immunization has to be required by the Texas Education Code for section 38.001 (f) to be applicable and neither the COVID -19 vaccine nor the influenza vaccine are currently required by statute in Texas.

Can Texas mandate vaccines now that there is FDA approval?

The Texas DSHS has declined to require COVID-19 immunization for admission to K-12th grade schools. Furthermore, Texas Governor Abbott’s Executive Orders 35 and 38 [issued April 5, 2021, and July 29, 2021, respectively] preclude school districts from requiring students to be vaccinated for COVID-19 by stating that no government entity can compel any individual to receive a COVID-19 vaccine administered under an emergency use authorization. Governor Abbott has since issued a new order banning COVID-19 vaccine mandates in Texas regardless of a vaccine’s approval status with the U.S. Food and Drug Administration. However, the federal government is pushing back and making its position in the vaccine debate abundantly clear.  In late July 2021, President Biden announced that all federal employees and contractors must get vaccinated or face weekly testing and a prohibition on work-related travel. Governor Abbott’s Executive Orders have effectively closed the door to that option for Texas school district employers for the time being. The debate over individual liberties and public health concerns will continue much as it did in 1905 and 1922.

This is an image of Sonya Garcia.
Sonya Garcia, Partner