Théra van Swaay De Marchi
Pinheiro Neto Advogados, São Paulo
Maria Silvia Loureiro de Andrade Marques
Pinheiro Neto Advogados, São Paulo
In a very comprehensive and interesting article published in IBA Global Insight, Anne MacMillan analysed the controversy over vaccines since their creation, along with the emergence and growth of the anti-vaccination movement throughout the world, a topic that hit the headlines and gained the attention of society during the current Covid-19 pandemic. After putting forth arguments for and against vaccination, including the main factors that trigger population concerns and/or resistance, and the approaches that could mitigate such a movement, the journalist reported, in brief but certain words, how some countries have been facing such a challenge and dealing with a crucial question for the world population: could or should vaccination be mandatory?
This article describes, in a very concise way, the current stage of such a discussion in Brazil, considering that this controversy reached the Supremo Tribunal Federal (STF) courtroom. There are three disputes that discuss whether the state can oblige citizens to undergo vaccination against infectious diseases, two of them specifically dealing with Covid-19 vaccination (Direct Actions of Unconstitutionality 6.586 ('ADIN 6.586') and 6.587 ('ADIN 6.587')).
Both ADIN 6.586 and ADIN 6.587 were filed by political parties – reflecting the political crisis that worsened in the country due to a strong sentiment that the necessary measures to counter the pandemic were mishandled by the Federal Government, as expressly mentioned by the justices in their votes. The plaintiffs moved to grant both actions based on the constitutionality, reach and correct interpretation of Article 3, III (d) of Law No 13,979 of 6 February 2020, in light of several articles of the Brazilian Federal Constitution that: (1) protect fundamental and social rights (life and health rights); (2) establish the duty of the state to implement social and economic policies to guarantee health rights to the whole population; and (3) provide for the concurrent authority of a federative entity to adopt immunisation and other prophylactic measures against the Covid-19 pandemic, among others.
After the vote delivered by Reporting Justice Ricardo Lewandowski, who partially granted both ADINs 6.586 and 6.587, adopting the interpretation of Article 3, III (d) of Law No 13,979 of 2020 in keeping with the Brazilian Federal Constitution, the following stand was settled: (1) compulsory vaccination does not mean forced vaccination as it always requires user's consent; however, it can be implemented by way of indirect measures, which comprise, among others, a restriction on carrying out certain activities or going to certain places, as long as these are prescribed by law; and (i) vaccines should rely on scientific evidence and pertinent strategic analyses; (ii) vaccines should be backed by extensive information regarding their efficacy, safety and contraindications; and (iii) vaccines should respect human dignity and fundamental rights; (iv) vaccines should meet the criteria of reasonableness and proportionality; and (v) vaccines should be free of charge and follow the universal access rule; and (2) such measures, with due regard for the foregoing limitations, can be implemented by the Federal Government, Federal District, states and municipalities.
Relevant legal arguments were raised by STF justices during the trial session, and some of them must be further analysed to better understand the historic and legal scenario involving this subject.
Historical facts and aspects
In their votes, all justices reported global and local historical facts highlighting a national episode known as 'Revolta da Vacina'. In 1904, legislation made vaccination and revaccination against smallpox mandatory, in which the state adopted coercive and excessively rigorous measures as a means of enforcing this obligation. Such measures were labelled as 'sanitary despotism' by government opponents, triggering an ideological movement against it by disclosing false information on the effects of vaccines.
As explained by Reporting Justice Ricardo Lewandowski, 'although many justifications for the "Revolta da Vacina" have been put forward, its most obvious explanation lies in generalised disgust with mandatory vaccination in the form carried out, especially through the invasion of houses and internment of the insubordinate group'. At that time, STF declared the normative ruling allowing health authorities to invade private properties unconstitutional, even based on public force.
Pre-existing mandatory vaccination in Brazilian legislation
Justices also emphasised that former legislation already provided for mandatory vaccination in Brazil and created the National Plan of Immunization (Programa Nacional de Imunizações or PNI), which is recognised internationally.
The mandatory vaccination mentioned in such legislation does not include forced immunisation. The Ministry of Health caused compliance with such an obligation by imposing indirect sanctions, such as restrictions on the exercise of certain rights or on access to certain places (ie, payment of social benefits; admission in nurseries, schools and universities; military enlistment; among others).
The STF decision also mentioned some special legislation that imposes monetary penalties in the case of noncompliance with mandatory vaccination (ie recommendation by relevant authorities or the fulfilment of duties within the family, or as a tutor or guardian, as per Articles 14 and 249 of the Statute of Children and Adolescents – Law No 8,069 of 1990, and Ordinance 1,986 of 2001, issued by the Ministry of Health, involving port and airport workers and crew members in personnel transport), defining it as a crime in certain specific circumstances.
Fundamental rights in discussion and measures to conciliate such rights
Forced vaccination was unanimously rejected by STF based on two essential guarantees ensured by the Brazilian Constitution: intangibility of the human body and inviolability of private primary residence, which excludes any possibility of vaccination manu militari (against one's will). Such guaranteed rights deriving from human dignity – considered the principle of principles (sobreprincípio) and root for other fundamental rights, such as life, liberty, security, intimacy and private life – inspiring the harmonic and peaceful coexistence globally, and limiting the actions of the state and its agents, are reflected in several international agreements recognised and duly signed by Brazil.
Concurrent authority of federative entities to provide and protect the population's health right
The state's healthcare obligations are established under the Unified Health System (Sistema Único de Saúde or SUS), one of the biggest and most complex public healthcare systems in the world, conducted by the Ministry of Health in the federal sphere and by the respective healthcare offices in the states and municipalities, on the basis of cooperative federalism. In general terms, the Federal Government sets national guidelines for health policy, the states coordinate their respective regional healthcare networks, and the municipalities plan and implement health actions and services alongside other cities within the same region based on the population's needs.
As explained by Reporting Justice Ricardo Lewandowski, based on: (1) the absence of hierarchy among their members, which does not allow prevalence of the Federal Government over states and municipalities; and (2) the subsidiary principle (which means, in simple words, whatever the smaller entity can do faster must be done more economically and more efficiently by it and not by others), all federative entities have the authority to adopt any measures to protect the population's health rights.
Thus, the Ministry of Health's authority to coordinate the National Immunization Program and define vaccines that are part of the national immunisation calendar does not exclude the authority of the states, municipalities and the Federal District to establish prophylactics and therapies aimed at tackling the Covid-19 pandemic at regional or local level, in the exercise of the power duty of 'taking care of health and public assistance', prescribed by Article 23, II of the Brazilian Federal Constitution, especially in the case of omission by the Federal Government, as expressly mentioned in the votes rendered by Justices Ricardo Lewandowski, Luis Roberto Barroso, Gilmar Mendes and other members of the STF Full Bench.
The trial is still ongoing. Considering that the decision was published in the Electronic Official Gazette on 7 April 2021, the parties and Federal Attorney-General's Office still have time to appeal.
However, it is likely that STF's stand on the acceptance of mandatory vaccination will prevail as a definitive ruling, especially considering the historical position of Brazilian authorities and understanding of STF over time, the importance of vaccination to mitigate the negative effects of the pandemic, and the turbulent political scenario putting the Brazilian executive and judiciary branches in conflict.
 See www.ibanet.org/Article/NewDetail.aspx?ArticleUid=70e1f93e-a23b-4f1a-a596-aeef84750241 accessed 8 April 2021.
 The third action is an Extraordinary Appeal – ARE 1.267.879, in which the anti-vaccination movement was discussed in broader terms, not specifically focusing on the Covid-19 pandemic.
 Brazil enacted Law No 13,979 of 2020, establishing measures to respond to the Public Health Emergency of International Concern (PHEIC) deriving from the novel coronavirus. According to Art 3 of Law No 13,979 of 2020:
'Article 3. To face the public health emergency of international concern referred to in this Law, the authorities may adopt within the scope of their powers the following measures, among others:
III – determination of compulsory performance of:
a) medical examinations;
b) laboratory tests;
c) collection of clinical samples;
d) vaccination and other prophylactic measures; or
e) specific medical treatments'.
 According to Law No 1,261 of 1904, revoked subsequently.
 Art 3 of Law No 6,259 of 1975, regulated by Decree No 78,231 of 1976, establishes that it is the 'duty of every citizen to submit themselves, and the minor children under their custody or responsibility, to mandatory vaccination'. Art 29 of that regulation excludes people who present a medical certificate of explicit contraindication. It also mentions Ministry of Health Ordinance 597 of 2004, which created the vaccination calendar in the national territory and defined conditions to implement the compulsory immunisation programme (evidence of vaccination through a certificate issued by public health services or by private doctors accredited by health authorities).
 Reporting Justice Ricardo Lewandowski explained in his vote, according to legal writings, that this crime requires proof of concrete danger and not only a simple violation of the law.
 As per Art 7 of Pacto Internacional sobre Direitos Civis e Políticos (introduced by Decree No 592/92), Art 5, I of Pacto San José da Costa Rica, and Arts 1, 2 and 5 of Convenção para Proteção dos Direitos do Homem e da Dignidade do Ser Humano face às Aplicações da Biologia e da Medicina.
"This article first appeared on the website of the Healthcare and Life Sciences Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association."