AUSTIN (KXAN) — Months after issuing an executive order banning mandates on face masks for governmental entities, Texas Gov. Greg Abbott has issued a new order strengthening current policy prohibiting the same entities from mandating COVID-19 vaccinations.
The rule stops any government entity from issuing a COVID-19 vaccine mandate, even for a vaccine like Pfizer’s, that’s no longer under emergency use and has gotten full approval from the U.S. Food and Drug Administration.
As part of the order:
- State agencies and local political divisions cannot adopt or enforce any order or policy requiring vaccinations
- Any public or private entity that receives government funding cannot require customers or patrons to provide COVID-19 vaccination status or proof of vaccination. Entry cannot be denied on this basis.
“I think that… the governor just is overstepping power,” said Ken Zarifis, president of Education Austin, which is Austin Independent School District’s teachers union.
He and many other members of the group have supported a vaccine mandate.
“Positive cases, exposures, are just happening everywhere,” he said. “If we’re going to make an error, we need to error on the side of safety.”
It’s why Zarifis has opted for virtual learning for his seven-year-old.
“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,” said Abbott in Wednesday’s press release.
In June, Abbott released a different executive order banning Texas businesses (including private ones) from requesting or requiring so-called “vaccination passports” from customers. Businesses could lose licenses and permits if they defy the rule.
How far can the governor’s orders go?
“That’s the question of the hour,” said David Coale, appellate litigation specialist and partner at Lynn, Pinker, Hurst & Schwegmann in Dallas.
Coale said the Texas disaster act was written for immediate emergencies, but the pandemic has now raged on for about a year and half.
“And so you have these provisions that grant sweeping power designed to be used to get the freeway going, to get food electricity where it needs to be, that now have gone on for a very long time, and we’re testing their limits,” he explained.
Coale said one of the legal cases over mask mandates in schools is expected to go in front of the state supreme court later this week or the beginning of next week.
He said hopefully then, we can get some insight from that court when it comes to the governor’s powers during a disaster.
But while there are some legal similarities between a mask and vaccine mandate, Coale said a vaccine battle may play out differently in court, saying the governor’s argument of individual autonomy may hold more weight.
“An immunization is different, it’s a medical treatment that you’re receiving, something’s being put in your body. We are more deferential to individual autonomy there,” he said.
Still, he thinks school districts like San Antonio will use the same argument.
“‘Saying, ‘well, good for you, you’ve got sweeping power, but we have power too, as a governmental entity that’s separate from yours and you can’t just take it away,'” Coale explained.
San Antonio ISD tells KXAN it will keep its vaccine deadline for staff.
“We strongly believe that the safest path forward as a school district is for all staff to become vaccinated against COVID-19. We are moving forward with our request to have all staff vaccinated by Oct. 15, unless they have a medical or religious exemption.”San Antonio ISD
Abbott has routinely made national headlines as of late, as Texas school districts battle to implement masking for students and staff — all while the state continues touting the second-highest number of new COVID-19 cases. Texas is currently averaging 16,521 new cases per day.
Coale said it remains to be seen if mask litigation will carry over into vaccine litigation; he said there is a lot of overlap but also some distinct issues.
The governor said he may rescind his order if lawmakers decide whether or not state and local governments can mandate vaccines and what exemptions should apply. He’s added it to the special session agenda.