The Texas Supreme Court upheld the constitutionality of compulsory vaccination laws in 1972. At that time, the Texas statute (T.E.C. 2.09) authorized two exceptions. Children had to be vaccinated before attending public school unless their parents provided 1) an affidavit from a doctor citing medical concerns; or 2) an affidavit signed by the parent, stating that the requirement “conflicts with the tenets and practice of a recognized church or religious denomination of which the applicant is an adherent or member.”

There was no “conscientious objector” exemption, as there is now. Current law allows an exemption if the parent presents an affidavit citing “reasons of conscience, including a religious belief.” T.E.C. 38.001(c).

If Mr. Itz could have cited “reasons of conscience” he would have won his case against the Fredericksburg ISD. Mr. Itz stated that his daughter had contracted hepatitis as a result of a diphtheria shot. He believed that vaccination is harmful to the health. But he provided neither a medical affidavit, nor a religious one.

In its short opinion, the Texas Supreme Court noted that objections to vaccination had a long and distinguished pedigree in this country. Ben Franklin opposed compulsory inoculations in 1721. George Clinton, colonial governor of New York, forbade inoculations against smallpox in New York City in 1747. Mr. Itz cited these historical precedents in support of his argument that inoculation is “an assault upon one’s body by invidious impregnation with bacteria that is cruel and unusual punishment.” He claimed that mandatory vaccination “interferes with parental control and decisions relating to the health of their children” and “interferes with their children’s constitutional right to a public free education.” In fact, Itz asserted, “Vaccination by compulsion is one of the greatest crimes today, and it is being committed by the Legislature of the State of Texas disguised as Education Code 2.09.”

The Court did not buy it. It asserted that “a much more enlightened view” had emerged. That view—that immunization is necessary to stop the spread of infectious disease—had, even by 1972, been adopted by “a great majority of the states.” The Court noted that “these statutes were the subject of frequent attack in the early years of the century and were universally upheld as proper exercises of the police power for the protection of the health and safety of the citizenry.”

Therefore, the Court concluded, the statute was constitutional. The case of Itz v. Penick was decided by the Texas Supreme Court on January 17, 1973. It can be found at 493. S.W.2d 506.