Our Constitutional Court resolved unanimously by vote, through judgment 2021-23195, the obligatory nature of vaccination against SARS-COV-2. This decision originates within the framework of an Appeal filed by rejecting the arguments of the appellant who: a.- alleged violation of privacy, freedom of choice and decision; b.- in addition, that the vaccine could not be mandatory without the signature of an “informed consent”; c.- that the vaccine is “experimental”; d. – that “there is no law” that obliges vaccination and e.- that the right of “conscientious objection” must be respected.

As a starting point, the judges rejected that the COVID-19 vaccines applied in the country are “drugs in experimental phase”.

The Constitutional Court continues to enunciate the regulatory framework that provides for the obligation to vaccinate, for example,

– the Civil Code in its article 46 states the following:

“… Any person may refuse to undergo a medical or surgical examination or treatment, except for cases of compulsory vaccination or other measures relating to public health, occupational safety and the cases provided for in article 98 of the Family Code (…)”.

Article 345, paragraph 3, of the General Health Law, in relation to the faculties of the Minister of Health and article 147 referring to the obligation of every person to comply with that law:

Article 345, subsection 3), declares mandatory vaccination against certain diseases, as well as certain tests or practices deemed necessary to prevent or control diseases.

Article 147: Every person shall comply with the laws or regulations and practices aimed for preventing the occurrence and spread of communicable diseases.

People are obliged to comply with: (…) b) The preventive measures that the health authority orders when a disease occurs”.

For the Court, vaccination is precisely a preventive measure to prevent the spread of a communicable disease.

Article 3 of the National Vaccination Act states the following:

In accordance with this Law, vaccinations against diseases are mandatory when it deems necessary by the National Commission of Vaccination and Epidemiology, which is created within this Law, in coordination with the Ministry of Health and the Costa Rican Social Security Fund. (…) The National Commission of Vaccination and Epidemiology shall issue an official list of vaccines, which shall be included in the Regulations of this Law. The list may be reviewed and analyzed periodically, considering the frequent technological changes in the field (…).

Finally, article 6 of the same law recognizes as an objective of the Vaccination and Epidemiology Commission:

Guarantee the obligatory and free vaccinations and the effective access of the entire population to them (…) Formulate the general political and strategic guidelines on vaccination, applicable in the health sector (…) Define, together with the authorities of the country’s health sector, the schemes and vaccines referred to in article 3 of this Law”.

For all the above, the judges rejected the allegation of violation of the reservation of law concerning the vaccine against COVID-19 in the list of mandatory vaccines, since the National Commission of Vaccination and Epidemiology made that decision in accordance with the powers granted by the National Vaccination Law.

The Court stated that it was important to note that article 150 of the General Health Law refers to the communicable nature of this legislation and must be complied with by every person who inhabits our country, it also mentions the obligatory nature of vaccination and revaccination against communicable diseases determined by the Ministry of Health.

“Thus, the inclusion of the vaccine against COVID-19 in the national vaccination scheme and its mandatory nature for health care must be understood in the light of the provisions of the National Vaccination Law, which defines the general regulatory framework in the matter,” the Court said.

No informed consent is needed:

In accordance with the regulations mentioned above it is reiterated that the vaccine against COVID-19 is not an experimental treatment, and the rights of autonomy and information of patients are diminished when vaccination is imposed.

There are sufficient provisions that legitimize the obligatory nature of the vaccine, so that autonomy, in such cases, is diminished in order to protect the interest and general public health (art. 21 of the Political Constitution, art. 1 of the General Health Law and regulations on vaccination cited above).

“Conscientious objection” cannot be alleged

The right to conscientious objection has limitations and, in those cases where it collides with another fundamental right, recourse must be made to the principle of practical concordance and, therefore, a balancing opinion between the rights that are in conflict. Mandatory vaccination against the coronavirus implies a collision between the right to conscientious objection and the right to individual health and the community in general (underlying public interest, which led to the measure).

The Court referred to judgment of October 2020 in which it defined the importance of vaccination as part of the essential health care that Costa Rica must guarantee in order to protect the fundamental right to health, and that the protection of public health and the prevention of diseases constitutes a constitutionally legitimate purpose that can validly justify the obligatory nature of vaccines.

The measure adopted is appropriate, necessary, and also proportionate in the strict sense, while the benefits generated to society as a whole are greater than the impact that could be received by the health care.

Finally, it is important to reiterate judgment No. 2021-000871 issued on January 15th, 2021, according to which the Constitutional Court established the following: “it does not correspond to this Court (…) refer to technical, medical and scientific aspects that deal with vulnerability to a virus”. In this way, this Court considers that the actions of the authorities are based on the regulations and the technical-medical data that are reasonably substantiated.

Written by:

Jaime Garro


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