The “scientific reasonableness” doctrine in the Italian Constitutional Court’s decisions on mandatory vaccinations

—Micol Pignataro, P.h.D. student in Constitutional Law, University of Bologna, Italy.

As we are leaving behind what appears to have been one of the greatest collective traumas our generations have endured in the most recent years, constitutional adjudicators are increasingly engaging with issues concerning the legitimacy of the measures that have been adopted by national decision-makers to manage the Covid-19 pandemic. In Italy, for example, the Constitutional court (ItCC) has recently delivered a set of judgments (decisions n. 14 and 15 of 2023) concerning the legitimacy of some provisions contained in statutory decree n. 44/2021, which prescribed a mandatory vaccination requirement initially for anyone working in healthcare structures and alike. 

The ItCC’s reasoning and findings come as no surprise: the Court did, in fact, hold the measures prescribed by the lawmaker as constitutionally legitimate. Moreover, the judgments easily stand in continuity with a long-standing and well-consolidated case-law on mandatory vaccination requirements which ultimately tries to balance the individual right to health, also interpreted as a person’s right to self-determination, with the community’s general interest for health (see Civitarese and Pignataro for a broader overview on the right to health prescribed by Art. 32 of the Italian Constitution). Although the decisions do not add novel elements to this well-developed case-law, they do give an interesting insight into the use of scientific advice in constitutional review, and offer further food for thought on the relationship between scientific data and technical bodies vis-à-vis political decision-making.

In one of the latest judgments on mandatory vaccinations (decision n. 5/2018), the ItCC reiterated the conditions that make a law imposing a medical treatment constitutionally legitimate (see Tega and Pignataro). It further specified that since the issue of vaccination involves many constitutional values, including the right to self-determination, the lawmaker can exercise its political discretion in choosing the necessary means to ensure the effective prevention of infectious diseases. This discretion must, however, be exercised in accordance with the concrete health and epidemiological situation, as ascertained by the responsible authorities and the constantly evolving discoveries of medical research, to which the lawmaker must turn for guidance when making its choices.

As Massa has already pointed out, the latter decision “exemplifies how these principles may support a data-driven judicial review of epidemiological legislation”, whereby the Court evaluates the “scientific reasonableness” (Penasa, 2009) of the law. The judgments that were recently delivered, and which I will focus on, not only confirm this trend, but they also trace a clearer trajectory as to how this reasonableness scrutiny concretely works. Indeed, as repeatedly emphasized by the Court, any intervention in these policy-areas cannot arise from evaluations made on pure political grounds but should (must?) arise from considerations based on scientific evidence, acquired by national or supranational institutions that are specifically designated for this purpose. The lawmaker, therefore, remains free in deciding how to use the evidence that is offered to it, but were its decisions in such policy-areas to lack any scientific basis, they would probably be held unreasonable. Indeed, the Court underlines that the lawmaker’s decision can still be considered the product of “political discretion, even if it is based (necessarily) on scientific evidence” (decision n. 14/2023).

The Court therefore assesses whether the lawmaker, in exercising its political discretion, kept within an area of “scientific reliability”, in light of the best knowledge attained in that historical moment, as defined by the designated medical-scientific authorities (decision 14/2023). In the cases at hand, the ItCC refers to the evidence provided by the WHO, the European Medicines Agency, the Italian Medicines Agency, the Superior Institute for Health, and other bodies within the Ministry for Health. In stating that the lawmaker must adhere to the evidence provided by designated institutions only, the Court is implying that other sources of evidence cannot be taken into consideration. This is expressly corroborated by the Court in a very brief passage in decision n. 14/2023 when it states that the scientific data that is provided by these competent authorities cannot be replaced by data acquired from other sources, even if it comes from “experts” in the field. The ItCC highlights that the problem in allowing other sources of evidence is primarily linked to a worry concerning the criteria that could be used in identifying which experts to rely upon; the aim is partly to avoid that decision-makers only seek advice that aligns with what they want to hear.  In this way, it may very well appear that the lawmaker’s political discretion is not limited by scientific evidence in general, but by the origin of that evidence. In other words, the evidence’s reliability ultimately depends on where it comes from.

The Court’s attitude ultimately does two things: on one side, it reinforces the attempt to “institutionalize” the participation of technical and scientific bodies in the decision-making process (Penasa, 2021). On the other, it allows us to create a bridge between these institutions’ intrinsic characteristics and the lawmakers’ political responsibility and accountability. By recognizing the relevance of these bodies by virtue of their legal foundation and because of the transparency, methodology and expertise that grounds their constitution and functioning, we can better define the decision-maker’s responsibility. In fact, if the latter can be assessed by verifying whether it operates with efficiency and competence (Sartori, 1995), and if the decision-maker’s decisions are increasingly “science-driven” (Iannuzzi, 2020), it appears that these designated institutions have the potential of becoming a graft in the decision-making process.

Suggested citation: Micol Pignataro, The “scientific reasonableness” doctrine in the Italian Constitutional Court’s decisions on mandatory vaccinations, Int’l J. Const. L. Blog, Mar. 6, 2023, at: iconnectblog.com/2023/03/the-scientific-reasonableness-doctrine-in-the-italian-constitutional-courts-decisions-on-mandatory-vaccinations/