The Future of National Vaccine Policy Runs Through Texas

Introduction

Vaccination policies are a cornerstone of public health and the guardrails of the public health system. The U.S. Centers for Disease Control and Prevention (CDC) reported that along with achieving safer workplaces, controlling infectious diseases, and recognizing tobacco use as a health hazard, vaccinating the public has been one of the greatest public health achievements of the 20th century.[1] Within a single U.S. birth cohort (babies born within one year), more than 20 incidents of disease and 40,000 deaths are estimated to be prevented by vaccines.[2] However, while vaccines have been saving lives, the anti-vaccination movement has transformed vaccination into a partisan issue, demonstrating a blatant disregard for public health measures and pushing for legislation that would weaken and dismantle the public health infrastructure.

Anti-vaccine activists have built elaborate misinformation campaigns to sow doubt among the public about the benefits of vaccines.[3] The proliferation and reach of social media have accelerated the spread of misinformation and disinformation in the public discourse,[4] with some state legislators even falling for these tactics. Anti-vaccination groups have pressured lawmakers by rallying on the steps of state capitols and drowning committee hearings with hours upon hours of repetitive testimony. These groups use popular social media platforms like Twitter and Facebook to organize and mobilize their followers.

Legislative activism arose in 2015 when California’s legislature introduced SB 277 to remove personal belief vaccine exemptions for school entry—a result of a large measles outbreak at Disneyland that year.[5] Despite hundreds of anti-vaccination activists working to derail the passage of SB 277, the bill was passed and signed into California law. However, the California anti-vaccine movement inspired anti-vaccination activists in other states to rally at state capitols across the country. When a Texas state representative filed a similar bill during the 84th legislative session in 2015, a new group of politically motivated and engaged anti-vaccination activists in Texas emerged.[6] As a result of this new mobilization, anti-vaccination activists were present at the Capitol and persuaded lawmakers to file numerous vaccine-limiting bills in 2017 and subsequent years. All of those bills were defeated.

Throughout 2020 and 2021, the anti-vaccination movement in Texas and across the country gained momentum; the COVID-19 pandemic provided an opportunity to test state legislatures, to see how far they could push state laws to weaken or remove vaccination policies. Although no anti-vaccine legislation passed during the last legislative session in Texas, 2021 serves as a preview for the 2023 legislative sessions in Texas and other states.[7] In this issue brief, we examine legislative vaccine policy challenges leading up to and during the COVID-19 pandemic, review state legislative anti-vaccine efforts, and discuss future vaccine legislative challenges and opportunities in Texas and the nation. Despite continuing challenges to state vaccine policies, vaccine advocates have opportunities to champion positive legislative change—especially in the face of multiple vaccine-preventable events and outbreaks.

Emerging Legislative Themes: U.S. State Politics

From 2009-2019, Texas legislators filed 104 vaccine-related bills with 21 bills enacted. The majority of the bills enacted were pro-vaccine, with bipartisan support.[8] These laws passed despite phone and email campaigns and vocal opposition during legislative hearings. These laws increased education and awareness about immunization, expanded access to data, and supported a stronger immunization infrastructure. Texas led the country as the first state to require meningococcal vaccination for college entry in 2009.[9]

Texas lawmakers, however, have not been unaffected by anti-science and anti-vaccination rhetoric and activism. In 2003, a last-minute amendment to an omnibus bill, HB 2292, opened the door to non-medical vaccine exemptions. The passage of that amendment created a broad loophole allowing parents to opt out of school-required vaccines for their children regardless of the reason (outside of medical reasons). In the years since, Texas has experienced year-over-year increases in school vaccine exemption rates. During the 2021-2022 school year, more than 85,000 school-age children in Texas were opted out of school-required vaccines. (Figure 1).[10]

Figure 1 — Texas Vaccine Non-Medical Exemptions, 2003 to 2021

While Texas vaccine advocates have had success advocating for and promoting pro-vaccine legislation over the past two decades, they have also dealt with a mounting anti-vaccination presence at the state Capitol. Campaigns built on misinformation and the concept of “medical freedom” influenced legislators to file more anti-vaccination bills and host hearings on those bills.[11] Prior to 2017, lawmakers filed very few anti-vaccine bills in the Texas Legislature, positioning anti-vaccination activists to oppose positive vaccine legislation rather than actively advocating for harmful legislation. That changed when in 2015 HB 2006 was filed to repeal non-medical vaccine exemptions. Although that bill failed, an emboldened anti-vaccine movement engineered the introduction of an onslaught of anti-vaccine bills in Texas in subsequent years.

The COVID-19 pandemic amplified the anti-vaccination movement and anti-vaccine legislation introduced across state legislatures. Anti-vaccination groups formed alliances with anti-government, anti-mandate, and extremist groups.[12] Activists were energized, promoting personal freedoms and rights while vilifying the government’s role in people’s daily lives and protesting public health measures like wearing masks. The pandemic increased concerns about the government’s direction on public health measures, especially its authority to issue COVID-19 vaccine requirements. In response, many state legislatures across the country, including in Texas, filed a trove of anti-COVID-19-vaccination bills.

The course of vaccine legislation in Texas changed dramatically in 2021, an unprecedented year at the Texas Capitol. The 87th legislative session began on January 12, 2021, in the middle of the COVID-19 pandemic and only weeks after the early deployment of COVID-19 vaccines to the public. The 87th Texas legislative session lasted an unusual 230 days: 140 days for the regular session and three 30-day special sessions. Throughout these sessions, Texas lawmakers filed more than 100 vaccine-related bills with over 60% of those bills proposing to dilute or eliminate pro-vaccine policies. Legislation ranged from limiting the scope of health and wellness policies that health care professionals and employers could set to removing long-standing public health tools such as school entry vaccine requirements.[13] Many of these anti-vaccination bills came in response to the COVID-19 pandemic as well as the federal government’s mandate for employers to require their employees to be vaccinated. More anti-vaccination bills were introduced in the 2021 legislative year than in the collective 19 years since non-medical vaccine exemptions became available in Texas in 2003.[14]

Future of Vaccine Legislation in Texas and beyond

The volume of anti-vaccine bills filed in Texas and other state legislatures in 2021 has set the tone for future legislative sessions. Similar to Texas, common themes emerged from anti-vaccination bills filed across the country during the 2021-2022 legislative sessions. Bills filed in Texas, Idaho, Arizona, Louisiana, and Iowa aimed to link vaccination status to civil liberties. For example, there were bills that sought to prohibit discrimination based on one’s immunization status and others that tried to make the unvaccinated a protected class.[15] The terms “medical freedom” and “bodily autonomy” appeared in bill captions or in the body of legislation to describe discriminatory practices, linking vaccines with broader movements to reduce public health measures or regulatory authority in medicine. A closer review of Texas anti-vaccination bills filed in 2021-2022 found that almost one-quarter of anti-vaccine bills had the word “discrimination” in the caption.

Anti-vaccine bills and rhetoric pave the way for greater public health policy dangers. There are five areas of concern as we approach the 2023 state legislative sessions: (1) erosion of school vaccination programs and requirements; (2) limitations on the ability of businesses to develop workforce health and safety policies; (3) constraints on the use of emergency use authorization (EUA) medications and vaccines; (4) redefinition of discriminatory practices related to vaccination status; and (5) prohibitions on vaccine development and research using fetal cell lines.
 

Figure 2 — Emerging Anti-vaccine Themes for 2023

School vaccine requirements face a particular risk in future years. Several state legislatures introduced bills to prohibit COVID-19 school requirements. These efforts began before COVID-19 vaccines became authorized for children under 16. In Texas, SB 1669, introduced during the regular session, prohibited discrimination based on vaccine status. If the bill had passed, it would have removed all school vaccine requirements. Legislation that prohibits schools from requiring COVID-19 vaccines would set a precedent that could lead to the dismantling of routine school vaccine requirements, which have been in place in many states for decades. Additionally, anti-vaccine legislation creates barriers to access school vaccination programs. In Louisiana, HB 48 would have prevented any vaccination clinics or vaccination drives on school campuses—including day care centers, primary and secondary schools, and colleges.[16] This and similar bills could create barriers to vaccine access since thousands of children receive primary health care, including vaccinations, through school-based clinics. If vaccination programs in the public or private sector weaken or break down, a public health catastrophe would surely follow.

Close to a dozen bills filed in Texas and across the country focused on workforce vaccine requirements. In Texas, considerable discussion centered around the COVID-19 vaccine requirements of Houston Methodist Hospital and the Biden administration. Houston Methodist was the first hospital system in the country to require employees to be vaccinated against COVID-19.[17] This led to an onslaught of legislation that would limit the ability of businesses to require their employees to obtain the COVID-19 vaccine. Other workforce legislation allowed employee exemptions from vaccines for any reason or allocated unemployment benefits to employees who did not follow company vaccination policies and, as a result, were dismissed from their jobs (MS SB 2736 and TX HB 155). Neither bill passed.

Some bills introduced within the last two years attempted to limit the use of new vaccines that are given emergency use authorization (EUA) by the FDA. Tennessee’s Senate introduced SB 9023 in 2021, which would have prohibited vaccines under an EUA to be required for children.[18] Michigan, Louisiana, and Colorado were among the states that saw similar legislation filed.[19] Preemptive limitations dictating how public health authorities can use EUA vaccines undermine public confidence and uptake with regard to future vaccines. These measures are shortsighted and dangerous for medical advancement. Disease research and development—resulting in medications, treatments, and vaccines—may be called upon to address other public health catastrophes, including the 2022 outbreak of monkeypox. EUA constraints will only hinder efforts to address such crises.

A fourth legislative concern centers on laws defining discrimination based on vaccination status. Opponents to vaccination use discrimination as an argument to avoid consequences for not getting vaccinated, logic that was used in Texas’ SB 1669 (previously described). Using this reasoning, anti-vaccine activists claim that vaccine mandates are discriminatory because they limit an unvaccinated person’s access to jobs, public or private spaces, and travel and services.

Finally, we anticipate that future vaccine policy debates will see other vaccine policy issues emerge that are linked indirectly to vaccine research, which we refer to as “sleeper” issues. One emerging concern is related to cell lines used to develop or test vaccines. A few cells have existed for decades that were created from fetal tissue. In 2022, several states saw legislation introduced that would create barriers to vaccine development that uses fetal tissue and related technology (LA HB 640, OK SB 846, and MN HF 2834). The Dobbs v. Jackson Women’s Health Organization Supreme Court ruling in summer 2022, which overturned Roe v. Wade and eliminated the constitutional right to abortion, will give momentum to activists who seek to limit, or even outlaw, vaccines and vaccine research using this kind of technology.

Although most anti-vaccination legislation that was filed failed, the act of filing an anti-vaccination bill increases public skepticism and hesitancy. Bills that move through the legislative process, regardless of whether they are passed into law, legitimize anti-vaccination beliefs and rhetoric and undermine science. Even more concerning is the fact that legislators, in attempts to be perceived as balanced, have given anti-vaccine bills a platform through committee hearings. Lawmakers have felt compelled to give “both sides” a say, which leaves a false impression that both sides are equal and legitimizes anti-science policies. This also allows testimony that uses questionable, misleading, or factually incorrect data to be presented as fact.

Conclusion

Vaccine hesitancy and resistance create a ripple effect through the public health ecosystem (Figure 3). Misinformation campaigns in the public discourse can lead to an erosion of public trust in science, scientists, and government institutions and threatens our vaccine policy infrastructure. Weaker state immunization policies lead to more vaccine-preventable outbreaks and limit access to vaccines—both potentially resulting in increased disease and death. One of the goals of the anti-vaccine movement is to marginalize discussions about the benefits of vaccination. Their view is that any discussion about vaccines—whether it’s about creating new access points to get vaccinated or the advantages of immunization—is coercive and therefore should be curtailed, penalized, or even outlawed.

Figure 3 — Impact of Vaccine Hesitancy and Resistance

Though 2021 and 2022 looked bleak for strengthening state immunization policies, there are still opportunities to encourage legislation at the state level to improve immunization rates and public health. Despite legislative volatility and multiple sessions, Texas Governor Greg Abbott signed into law three pro-vaccine bills passed in the regular session—HB 797, SB 1353, and SB 239.[20] HB 797 expanded the ability for home health agencies to administer COVID-19 vaccines and other FDA approved vaccines. SB 1353 required the state to make demographic data publicly available for tracking to help ensure equitable access to vaccines. SB 239 required the state health department to disseminate immunization information to community-based organizations and veterans’ homes during times of disaster. Only one anti-vaccine piece of legislation, SB 968, which included language to prohibit vaccine passports, was signed into law.

In spring 2022, The Immunization Partnership (TIP), a statewide nonprofit, conducted town hall meetings across Texas to gather stakeholder input about the successes and challenges of immunizing the public and to identify policy gaps. According to stakeholders at these meetings, while vaccine hesitancy continues to be a challenge, the pandemic created teachable moments and improved public awareness of the importance of vaccination. However, immunization information systems continue to be top-of-mind for advocates, especially considering issues that were identified during the COVID-19 vaccine rollout. A robust opt-out immunization registry is needed in Texas. Carrying the momentum from 2021, vaccine stakeholders also agreed that further action is needed to understand and find solutions for vaccine equity challenges experienced within disabled communities.

The 2023 Texas legislative session is expected to be another difficult session for pro-vaccine policies. Anti-vaccination bills that did not pass in 2021 are anticipated to be refiled. In addition, the November 2022 midterm election will impact the trajectory of vaccine-related bills in the Texas Legislature. Texas traditionally has had bipartisan support for vaccine policies, with lawmakers from both sides of the aisle coming together to improve public health.[21] Texas lawmakers have managed to keep vaccine-limiting bills at bay, while still passing important pro-vaccine legislation. The adage of “the future of the nation runs through Texas” applies to the future of vaccine policies and the spillover effects that a pro-vaccine Texas Legislature could have on other states.

Acknowledgments

The authors would like to thank the the staff and students who helped review manuscript drafts including Baker Institute staff Daniel Morali, Jacquie Klotz, and Flora Naylor; Baker Institute CHB interns Neha Kalakuntla, Hallie Trial, and Neha Tallapragada; Baker Institute EMERGE scholar Tietchan Dang; and Terri Burke, executive director for TIP. This article is part of the 2022 Vaccine Policy Symposium. Support for dissemination of this report and other vaccine policy research was generously provided by a “Bridging Bioethics Research & Policy” grant from The Greenwall Foundation. For more information and other related research, visit the Baker Institute Vaccine Project webpage at https://www.bakerinstitute.org/vaccine-project.

Endnotes