—Bruno Santos Cunha, City Attorney, Recife, Brazil
In the last week of August 2020, the Brazilian Supreme Court had a peculiar case on its docket: the State of São Paulo was suing the parents of a 5 year-old child in order to compel them to regularize their child’s vaccination according to the mandatory vaccine calendar applicable to children nationwide. On this occasion – and following the Court procedures regarding its appellate jurisdiction in constitutional cases – the Supreme Court was only called upon to declare whether the case, as decided by the São Paulo Appellate Court, provided a clear constitutional challenge able to trigger Supreme Court jurisdiction. In a unanimous decision, the Brazilian Supreme Court said that it is within its constitutional scope to judge whether parents are compelled to follow mandatory vaccination schemes regardless of their ideological, religious, moral or existential beliefs. After accepting to judge the case on constitutional grounds (STF – ARE 1267879 – Tema 1103), the Court is now ready to schedule its judgment on the merits in the near future.
In the specific case before the Brazilian Supreme Court – the battle between the State of São Paulo and the above mentioned parents – the main issue was the ideological and/or existential belief held and invoked by the parents: a vegan philosophy contrary to invasive medical interventions that obstructed the parents’ compliance with the mandatory vaccination scheme determined by health authorities. Thus, the State of São Paulo Prosecution Service brought an action against the parents because of their noncompliance with the vaccination scheme.
The case was heard at first by a district judge in the city of Paulínia, State of São Paulo. Relying on the freedom of parents to educational guidance and preservation of their children’s health (articles 227 and 229 of the Brazilian Constitution[1]) and on the idea that serious risks may arise from the use of vaccines, the district judge held that the State of São Paulo could not impose mandatory vaccination against the will of the parents, especially when will was based upon ideological or religious grounds.
When the case reached the São Paulo Appellate Court on appeal by the Prosecution Service, the Appellate Court reversed the District Court’s ruling stating that mandatory vaccination schemes provided by the State are designed to meet and fulfill the interests of the child, provide for his health and the community health as a whole. In such a scenario, the child’s interests prevail over family convictions (whether religious or ideological). As stated by the State Court, the freedom to exercise family power finds absolute limits in the objective interest of the child’s health, well-being and integrity, with such an interest prevailing over the exercise of individual rights that, in principle, exclusively concern the parents.
Dealing with the clash between family power, individual rights of the child and the public interest that arose from the case, Supreme Court Justice Luís Roberto Barroso framed the constitutional question to be answered by the Brazilian Supreme Court in the following terms:
On the one hand, parents have the right to direct the upbringing of their children and the freedom to defend ideological, political and religious doctrines of their choice. On the other hand, there is the duty of the State to protect the health of children and the community trough preventive health policies against infectious diseases, as is the case of childhood mandatory vaccination.
Though the case is still pending in the Supreme Court docket with no scheduled judgment, it is clear that its results may have a major impact on the long-awaited COVID-19 vaccine, especially when Brazil is struggling with high numbers of cases and deaths due to the current pandemic. It is possible to anticipate, therefore, that numerous judicial challenges will be brought against any mandatory COVID-19 vaccination scheme provided by States (or even by the Federal or Local governments). Given that, it seems like a great opportunity for the Brazilian Supreme Court to establish, in broad terms, the scope and possibilities arising from compulsory vaccination programs.
Looking abroad for examples of Constitutional Courts that have already had to deal with similar cases, the US Supreme Court swiftly comes to mind with its 1905 decision in Jacobson v. Massachusetts, where a 7-2 majority of the Court found that the city of Cambridge, MA could fine residents who refused to receive smallpox injections.[2] According to Jacobson:
the liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State. It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.
Building upon Jacobson’s holding, the US Supreme Court found in Zucht v. King (1922) that the school district of San Antonio, Texas, could constitutionally exclude unvaccinated students from attending its schools. For the Zucht Court, “long before this suit was instituted, [Jacobson v. Massachusetts] had settled that it is within the police power of a State to provide for compulsory vaccination”.
It is important to say that the Jacobson Court did not deal specifically with exemptions grounded on First Amendment terrain[3] or with the level of scrutiny the State would have to meet in order to establish compulsory vaccination. More than that, although the application of Jacobson to the modern age of vaccinations is a source of scholarly debate,[4] it is clear that the precedent endures as a reasoned formulation of the boundaries between individual and collective interests in public health.[5]
Jacobson clearly represents an initial ground of debate on which the Brazilian Supreme Court can build in considering whether mandatory vaccination is a constitutionally acceptable mandate. According to its own precedents, the Court is expected to uphold mandatory vaccination schemes for children, especially by relying on the prevalence of the child’s interests over family convictions (religious or ideological) and on the supremacy of the public health (public interest). On top of that, compulsory child vaccination in Brazil is a longtime established public policy aimed at reducing the risk of diseases, being a requirement of access to several governmental programs (v.g. public education and cash transfer programs). It is expected, thus, that the final response of the Brazilian Supreme Court will be as swift and thoughtful as possible.
As for future judicial challenges brought against any possible mandatory COVID-19 vaccination schemes, two distinct statements related to the subject were made last month.[6] On the one hand, President Jair Bolsonaro declared in an interview about the COVID-19 vaccine that “no one can force anyone to get a vaccine”[7]; explaining the President’s view in a Twitter post, the Federal Government’s Social Communication Department stated that “the Brazilian Government values its citizens’ freedoms”. On the other hand, the Brazilian Supreme Court upheld the mandatory use of face masks in public and private spaces accessible to the public (APDF 714, 715 and 718). The legal provision that requires the use of face masks is part of the federal law that provides measures to face the public health emergency resulting from the coronavirus outbreak (Federal Law n. 13.979/2020). In deciding the case, Justice Gilmar Mendes stressed the idea that the constitutional right to health “must be realized through specific actions (individual dimension) and through broad public policies aimed at reducing the risk of diseases (collective dimension)”. Thus, the mandatory use of face masks was deemed constitutional.
The same federal law requiring the use of face masks also provides that health authorities (Federal, State and Local) may impose mandatory medical examinations, laboratory tests, collection of clinical samples, other prophylactic measures and even compulsory vaccination. The emergence of an effective vaccine against the coronavirus will probably spark new legal debates about the possibility of mandatory vaccination in both adults and children and the constitutionality of the federal law that enables it. If a case about the COVID-19 mandatory vaccination reaches the Brazilian Supreme Court, the same line of reasoning followed by Justice Gilmar Mendes for the mandatory use of face masks is likely to prevail.
Suggested citation: Bruno Santos Cunha, Compulsory Vaccination in Brazil: Anticipating the COVID-19 Vaccine Struggles, Int’l J. Const. L. Blog, Sept. 30, 2020, at: http://www.iconnectblog.com/2020/09/compulsory-vaccination-in-brazil-anticipating-the-covid-19-vaccine-struggles/
[1] Art. 227. Article 227. It is the duty of the family, society, and the State to ensure children, adolescents, and young people, with absolute priority, the right to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, freedom, and family and community life, as well as to guard them from all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression.
Art. 229. It is the duty of parents to assist, raise and educate their under-age children and it is the duty of children of age to help and assist their parents in old-age, need or sickness.
[2] See Nicholas Mosvick, On this day, the Supreme Court rules on vaccines and public health, Constitution Daily – Smart conversation from the National Constitution Center, Feb. 20, 2020 at: [https://constitutioncenter.org/blog/on-this-day-the-supreme-court-rules-on-vaccines-and-public-health].
[3] As stated by Arthur L. Caplan, the plaintiff in Jacobson (Pastor Henning Jacobson) was not a fanatic relying on religious grounds rather than on science not to be vaccinated. His main concern was safety, for he and his son were supposedly injured by previous vaccines. See Arthur L. Caplan, ‘The Battle Over Compulsory Vaccination in the United States’ (2018), Am J Public Health, 108 (4): 424-425.
[4] See Nicholas Mosvick, On this day, the Supreme Court rules on vaccines and public health, Constitution Daily – Smart conversation from the National Constitution Center, Feb. 20, 2020 at: [https://constitutioncenter.org/blog/on-this-day-the-supreme-court-rules-on-vaccines-and-public-health].
[5] See Lawrence O. Gostin, ‘Jacobson v Massachusetts at 100 Years: Police Power and Civil Liberties in Tension’ (2005), Am. J Public Health, 95 (4): 576-581.
[6] The same month the Brazilian Supreme Court accepted to judge the case arising from the São Paulo Appellate Court (mandatory child vaccination without religious or ideological exemption).
[7] See [https://noticias.uol.com.br/ultimas-noticias/reuters/2020/08/31/ninguem-pode-obrigar-ninguem-a-tomar-vacina-diz-bolsonaro.htm].
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