“Texas is open 100%”—Governor Abbott Signs Vaccine Passport Ban

On June 7, 2021, Governor Greg Abbott signed into a law a bill (SB 968) that, among things, prohibits governmental entities in Texas from issuing COVID-19 vaccine passports or other standardized documentation to certify the person’s COVID-19 vaccination status to a third party for a purpose other than health care.

The bill also prohibits any business in Texas from requiring a customer to provide documentation certifying the customer’s COVID-19 vaccination or immunity in order to enter, access, or receive service from the business.

The vaccine passport ban broadly applies to any business operating in Texas and governmental entities. Thus, for example, a college in Texas likely could not require students to submit proof of COVID-19 vaccination before attending classes.

A business that fails to comply by requiring proof of vaccination will be ineligible to receive a grant or enter into a contract payable with state funds. In addition, the business could lose or be denied state licenses, permits, or other state authorization necessary to operate in Texas.

The bill does not restrict a business in Texas from “implementing COVID-19 screening and infection control protocols in accordance with state and federal law to protect public health.”

“Texas is open 100%,” Abbott said in a tweet announcing the bill’s signing. “Texans should have the freedom to go where they want without any limits, restrictions, or requirements.”

Biden administration officials have said the federal government will not promulgate or mandate vaccine passports, leaving it up to the states to decide for themselves.

According to Ballotpedia, as of June 4, 2021, 15 states have prohibited COVID-19 proof-of-vaccination requirements: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Montana, South Carolina, South Dakota, Texas, Utah, and Wyoming. In seven of those states—Alabama, Arkansas, Florida, Indiana, Iowa, Utah, and now Texas—lawmakers enacted laws banning COVID-19 vaccine passports. Governors in the remaining eight states banned them through executive orders.

Meanwhile, across the pond, the European Commission is launching its “Digital COVID Certificate” for EU citizens and residents. While Member States are not required to implement the certificate, all of them are already in the process of introducing it. The certificate is intended to allow free movement between Member States: “When travelling, the EU Digital COVID Certificate holder should in principle be exempted from free movement restrictions: Member States should refrain from imposing additional travel restrictions on the holders of an EU Digital COVID Certificate, unless they are necessary and proportionate to safeguard public health.”

The Texas bill may soon be put to the test—Carnival Cruise Line plans to launch a cruise from Galveston on July 3, 2021, with all guests required to prove vaccination. Carnival says they are “evaluating” the new law but that the “exceptions for when a business is implementing COVID protocols in accordance with federal law . . . is consistent with our plans to comply with the U.S. Centers for Disease Control & Prevention’s guidelines.”

Responding to a tweet asking about Carnival’s vaccination requirement, Governor Abbott said the law “prohibits any business operating in Texas from requiring vaccine passports or any vaccine information”—suggesting there may be a clash if Carnival proceeds as planned.