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Gov. Abbott’s ban on COVID-19 vaccine mandates will likely face legislative and legal challenges

A woman wearing a t-shirt that reads "Texas Born & Raised" gets a vaccination from a health professional.
Gabriel C. Pérez
Sofia Peña receives a coronavirus vaccine at a clinic hosted by the Central Texas Allied Health Institute on March 27.

Gov. Greg Abbott issued an executive order Monday banning all vaccine requirements. But such efforts to block vaccine mandates statewide may face hurdles both legally and logistically, with a prospect for the ban to get hung up in the state Legislature, the courts, or both.

Along with executive order GA-40, which bans COVID-19 vaccine mandates by any entity in Texas — including private businesses — Abbott directed lawmakers to pass legislation in the third special session that would do the same.

While touting vaccine efficacy, Abbott nonetheless said Monday that the vaccine should “remain voluntary and never forced.”

But while such legislation is likely to pass the state Senate under the sympathetic leadership of Lt. Gov. Dan Patrick, it's far from clear it can pass the House under Speaker Dade Phelan in the next few days, according to Sherri Greenberg, a former Texas state representative and professor of practice at the University of Texas at Austin.

“Phelan will have to, so to speak, take the temperature of his members," Greenberg said. “Particularly given the business climate, and do they want to tell private businesses that they cannot control their own destiny?”

The third special session is set to expire on Wednesday of next week, but Greenberg said she wouldn’t rule out a fourth special session if the governor doesn't get everything he wants out of the current one.

"We have seen just looking back in history over the past few years and sessions that there is more of an appetite with this governor for special sessions,” Greenberg said.

Regardless of whether the Legislature acts or whether the measure remains an executive order, it's almost certain that Texas will wind up in a court fight with the federal government over Abbott's effort to ban vaccine mandates.

The Biden administration issued a mandate requiring all businesses with 100 or more employees to mandate either vaccines or weekly testing.

In his order, Abbott called it “yet another instance of federal government overreach” from Biden.

According to Mark Jones, a political science fellow at Rice University, Abbott’s attempt to push back against Biden’s mandate could be motivated by the upcoming Republican primary in March 2022.

“Governor Abbott has a Republican primary on his hands,” Jones said. “He’s (getting) a lot of pressure from Don Huffines, one of his challengers in particular, to do something to fight back against President Biden’s mandate.”

Greenberg said a court battle is particularly likely in cases involving the enforcement of vaccine bans involving airlines based in Texas but serving the entire country, such as Dallas-headquartered Southwest Airlines and United Airlines with its Houston hub. Both airlines signaled on Tuesday that they will follow Biden’s guidance, despite Abbott’s order.

But the question of whether Biden’s directive supersedes Abbott’s is a clear point of conflict, according Joshua Blank, research director for The Texas Politics Project at The University of Texas at Austin.

Speaking to Town Square host Ernie Manouse on Tuesday, Blank said that conflict is likely by design.

"The point is political,” he said. “The point is for Abbott to be a counterweight to Joe Biden, and to be the most visible person standing up on the other side of this argument.”