After changes to federal recommendations on which and how many vaccines children should receive were blocked by legal challenge, a new White House Executive Order attempts to alter the vaccine schedule by fiat and to push states into making changes by threatening to sue or withhold federal education funds. 

As President Donald J. Trump signed the order on August 10, he said it contained America's "gold standard vaccine recommendations." White House Counsel Will Scharf stated during the signing that the order would "essentially set a new vaccine schedule." Heidi Overton, MD, a White House domestic policy advisor, said the order would tell the 28 states that no longer follow the US CDC vaccine recommendations to follow its advice. 

The order also said the Justice department would take legal actions against states that do not provide religious and medical exemptions from school-based vaccine requirements.

But legal experts say the Trump administration will likely face litigation if it changes the childhood immunization schedule without consulting the CDC's Advisory Committee on Immunization Practices (ACIP). And, they say, given that most state legislatures don't meet again until early 2027, state-level changes aren't likely in the short term, while all but four states already allow nonmedical exemptions to school mandates.

"If they follow the steps as laid out in the executive order, they're not going to succeed legally," said one attorney who spoke to Medscape Medical News on background.

CDC Director Could OK New Schedule

The ACIP has essentially been in limbo since a Massachusetts judge ruled that the committee had been illegally appointed and that its recommendations were not valid. 

But the new CDC Director, Erica Schwartz, MD, could choose to bypass ACIP and unilaterally change the childhood and adolescent immunization schedule to add the order's recommendations — which include moving the hepatitis A, hepatitis B, rotavirus, meningococcal disease, influenza, and COVID-19 vaccines to "shared clinical decision-making."

"CDC officials might feel that they have to follow their leader," said Dorit Reiss, a professor of law at UC Law San Francisco. 

But, if Schwartz does change the schedule, it would be challenged in court, Reiss told Medscape. Two ongoing suits against the Department of Health and Human Service — one led by the American Academy of Pediatrics, and another led by Arizona on behalf of a coalition of states — are already questioning in part just how far the CDC can go without ACIP consultation.

Wendy Parmet, Matthews distinguished university professor of law at Northeastern University School of Law, Boston, said it's not clear yet how courts will rule. 

Federal statutes like the Affordable Care Act and the Vaccines for Children program specify that they are guided by ACIP, Parmet said. "They don't reference the recommendations of the White House or the President," she told Medscape.

In the meantime, though, Schwartz is in a tough position, said Parmet. "She is accountable to the President." She could risk being fired if she does not change the vaccine schedule, Parmet said.

Will States Act?

School vaccination policies are set at the state and local level — which explains why the order "advised" states to review the recommendations and "consider updating relevant laws and regulations" pertaining to immunization requirements.

Jenifer Herricks, PhD, the advocacy director for American Families for Vaccines, said the pro-vaccine nonprofit was concerned. "We see it as a clear political and legal pressure for states to rethink their vaccine policies," Herricks told Medscape.

Herricks said there's a patchwork of laws and regulations that govern vaccine schedules in each state. Some could choose to update schedules by regulation in states where that is possible, she said. Others might change schedules through Executive Orders — as happened in West Virginia. That is the subject of ongoing litigation.

Otherwise, only six states are still in legislative session, which means new bills are not likely this year, said Herrick.

States may employ other ways of challenging vaccine policy. Florida's attorney general recently sent a letter to the state's Catholic Bishops threatening to withhold state educational funds if the Church did not allow religious exemptions to vaccination requirements in Catholic schools.

Parmet and Reiss both said that federal agencies were unlikely to prevail in suits that attempted to withhold or clawback funds for states that do not allow nonmedical exemptions — currently California, New York, and West Virginia.

"They don't have a great argument there," said Reiss.

Parmet said that most judicial opinions have backed the idea that states are legally within their rights to not have religious exemptions for vaccines. 

"If it is perfectly constitutional to not have a religious exemption, I don't see where the Trump administration gets its authority," she said.

Ultimately the question on whether exemptions should be required may end up at the US Supreme Court, said Parmet. Even though the Court has typically backed religious liberty, it might not disagree with lower court rulings against religious exemptions for vaccines, she said.

Reiss, Parmet, and Herricks reported no disclosures.

Alicia Ault is a Saint Petersburg, Florida-based freelance journalist whose work has appeared in many health and science publications, including Smithsonian.com. You can find her on X @aliciaault and on Bluesky @aliciaault.bsky.social.