Yes, you heard right, a vaccination was mandated in Texas, as a condition for entry by Texas girls into public middle school, at age 11 or 12,. With thanks to Miriam Seifter, who reminded me of this in a footnote in her terrific work on Gubernatorial Administration. In 2007, then Texas Governor Rick Perry, a Republican, issued RP-65 making Texas the first state in the nation to mandate a vaccination against the Human Papillomavirus Virus (HPV) Perry’s Executive Order was subsequently reversed by action of the Texas Legislature, but it’s an interesting historical moment: the legislature didn’t question the Governor’s authorities to mandate the vaccination in the interest of protecting public health, only the wisdom of the decision to take away parental choice As Dan Rodriguez observed on SLoGLaw Blog earlier this week, the EO authority is designed to be used to further public health protection, not to cabin it.. So the 2007 case is worth unpacking as a contrast to current events.
Certain strains of HPV are highly correlated with human cervical cancers. According to the Texas Cancer Registry, there were 1,169 new cases and 391 deaths from cervical cancer in Texas in 2006, the year before RP-65. Nationally, about 12,000 new cases of cervical cancer are reported annually in the US, and about 4000 deaths.
A few things to note here: HPV does not necessarily cause cancer; it is highly correlated with cancer. There is a lag time of years between infection and disease; and cervical cancer caught in its early stages is highly treatable; in fact, the standard of care in gynecologic examinations includes a Pap smear to detect the disease or its antecedents. HPV does not spread by casual contact, and rarely spreads by any kind of contact except one: sexual contact.
In June 2006, the FDA licensed a Merck vaccine against HPV strains 16 and 18, along with two other strains associated with reproductive system cancers in both women and men. The license was for use in girls and women age 9-26, and the vaccination was thought to confer protection for about five years. Before licensing about 59,000 individuals both male and female, participated in vaccine trials.
Persuaded to act to protect the health of middle school age girls in Texas against an illness that might take years to manifest itself, and could also be prevented through sexual abstinence, Perry noted no specific source in Texas’ disaster or emergency management authorities for RP-65, which did include a religious or conscience objection opt-out that parents could exercise.
The EO caused an uproar, as Christian conservatives and those aligned with them protested. Perry had crossed red lines on adolescent sex, bodily integrity and parental responsibility. Opponents accused the Governor of encouraging irresponsible sexual activity by pre-adolescent and adolescent girls, and of interfering in family decision making. The mandate, his critics said, should have been an opt-in; and not an opt-out. Perry was also criticized for accepting campaign donations from Merck, which invested heavily nationwide to lobby state legislatures for mandates requiring its HPV vaccination product Gardisil for middle school entrance. (It hasn’t worked; even in 2021, only three states and the District of Columbia have adopted a mandatory approach to HPV vaccination) It’s worth noting that none of the critics at the time seemed to have registered the objection my colleague Larry Gostin noted in 2011, that the Texas mandate was only for girls, and not boys, who also could suffer health conditions related to infection, and could transmit it to sex partners.
Well, here we are fifteen years later. In Texas, there are over four million confirmed cases of COVID-19 resulting in nearly 66,000 deaths in the state. More than 9000 Texans died of the disease in August and September 2021 alone. Over the summer Governor Abbott signed an executive order purportedly under his powers under the Texas Disaster Act, prohibiting mask mandates or COVID-19 vaccine requirements by government agencies and municipalities statewide, and has defended the measures in court, winning before the Texas Supreme Court. Just compare the staggering COVID-19 death figures in Texas in 2020-2021 to the 2006 cervical cancer death rate (391) in the state.
This brings us back to the purpose of the EO authority. As questionable as Governor Perry’s motives may have been in 2007 when he signed RP-65, mandating vaccinations to save lives and protect health clearly falls within gubernatorial public health authorities. They also may belong to local governments under home rule as Kellen Zale argues here on SLogLaw BLog. If one Republican Texas Governor can issue an EO to control transmission of a virus spread almost exclusively through sexual contact, with no immediate health effect, what possibly justifies another Republican Texas Governor’s obstinance in the face of an airborne disease with a substantial fatality rate within weeks of infection? Texas should look to its own history to reconsider its strategy to control COVID-19.
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