Bioscience-Medicine

UT Law Professor Says Courts Likely To Uphold Vaccine Mandates When Challenged

KUT 90.5 | By Jill Ament,

David Brown, Shelly Brisbin | Texas Standard

Published September 10, 2021 at 2:09 PM CDT

A bandage is placed on the arm of a COVID-19 vaccine recipient during a pop-up vaccine clinic at Cristo Rey Church in East Austin.

Many institutions in Texas and beyond have issued COVID-19 vaccination mandates for employees, even as Gov. Greg Abbott has banned such mandates by government entities in Texas.

But a Texas constitutional scholar writes that officials hesitating to impose mandates for fear of legal action may find the courts more sympathetic than they expect.

Steven Vladeck is a professor at the University of Texas School of Law and coauthor of a recent article on the Lawfare blog making the case that courts are likely to uphold the legality of vaccine mandates. Vladeck told Texas Standard that vaccine mandates have successfully been imposed in the past. That includes public schools, which currently require students to have seven different vaccines.

Vladeck also points to a 1905 Supreme Court case that upheld a smallpox vaccine mandate after an epidemic in Boston.

"What folks are missing is the assumption that we have some kind of constitutional right to have the government never give us medical care," Vladeck said.

Over the years, Vladeck says courts have recognized that vaccines are important public health tools that protect the entire population, not just the person receiving the shot.

"Governments are allowed to decide that having a particular slice of the population vaccinated is worth the incursion on individual rights," he said.

Vladeck says tailoring mandates to target elements of the population at greatest risk is key to establishing mandates that will withstand court challenges.

"The easiest way we think that contemporary courts would poke holes in vaccine mandates is if they were categorical, with no exceptions," Vladeck said.

Those exceptions would allow people with sincerely held religious beliefs or those who face medical risk if they were vaccinated to opt out.

Vladeck questions basing a vaccination mandate ban on a supposed constitutional prohibition, as Abbott has. He says he thinks Abbott's call for legislative action on the Texas mandate ban in the upcoming special session is the governor's way of giving his order a firmer footing in state law, making it less susceptible to legal challenges.