Mauro Hiane de Moura

Veirano Advogados, São Paulo

mauro.moura@veirano.com.br

Renata Fialho de Oliveira

Veirano Advogados, São Paulo

renata.oliveira@veirano.com.br

From the 'Vaccine Uprising' (Revolta da Vacina) to mandatory vaccination

If the Covid-19 pandemic had not come about, it is probable that there would be no discussion in Brazil around the constitutionality of the laws providing for compulsory vaccination. In fact, vaccination in the territory has been obligatory since imperial times. Decree No 464 of 1846, which regulated the Vaccination Institute of the [Brazilian] Empire (Instituto Vaccínico do Império) set out, among others, that 'all persons residing in the Empire [shall] be subject to vaccination… Exception shall be made only to those who show that they have had regular vaccine, or true infection marks' (ie, who have been affected by smallpox and healed) (Article 29).

In 1889, Brazil ceased to be a monarchy and became a republic. The development of Rio de Janeiro as its capital brought about various endemic diseases and, as a result, President Rodrigues Alves chose public health as one of his priorities. Dr Oswaldo Cruz was appointed to the General Office of Public Health (Diretoria Geral de Saúde Pública) and, after reducing the levels of contamination of yellow fever and bubonic plague, he took on the challenge of containing smallpox. For this purpose, a new law was approved on 31 October 1904 establishing that 'vaccination and revaccination against smallpox [shall be] mandatory throughout the Republic' (Law No 1,261, Article 1).

A combination of popular dissatisfaction with urban reforms and sanitary measures that were already being adopted by the government and the political opportunism of opposition parties led to the so-called 'Vaccine Uprising' – a week of unrest that included riots and an attempted coup against President Alves. The Vaccine Uprising was controlled by means of a declaration of martial law and the suspension of mandatory vaccination – resulting in 945 arrests and subsequently 461 deportations. In 1908, however, a new smallpox epidemic hit Rio de Janeiro, leading the population to spontaneously seek protection through vaccination.

Once the Vaccine Uprising became part of history books, compulsory vaccination plans seemed to be a settled and uncontroversial matter. Since 1940, the Brazilian Penal Code has provided for the crime of 'violation of preventive sanitary measure' (Article 268), described as 'violation to the determination of the public authority, intended to prevent the introduction or spread of contagious disease'. Such wording allows public authorities to intervene in an individual’s private autonomy sphere to prevent the spread of a 'contagious disease' affecting an entire community.

Federal Law No 6,259 of 1975 sets forth that the 'Ministry of Health is competent to prepare the National Immunization Program, which shall define vaccinations, including those of a mandatory nature' (Article 3, caput). This law further indicates that 'failure to comply with such obligations constitutes a sanitary violation and subjects the perpetrator to the penalties provided for by law, including those of a criminal nature' (Article 14). Decree No 78,231 of 1976 regulated this law, providing for mandatory vaccines and the situations in which they could be waived.

Similar political tactics, different institutional environment: the role of the Supreme Federal Court

Considering the historic Brazilian legal background, Federal Law No 13,979 of 2020 – which provides for measures to face the public health emergency of international importance arising from the coronavirus responsible for the 2019 outbreak – does not appear to innovate when it allows public authorities to determine compulsory vaccination and other prophylactic measures.

Again, however, the political environment led to disagreements regarding the enforcement of a sanitary regulation. If, in the Vaccine Uprising, opposition parties aiming to unsettle the Presidency of the Republic protested against the 'authoritarian character' of mandatory vaccination and suggested that it could cause serious 'side effects', this time, it was the Presidency of the Republic that used variations of these same arguments – further combining them in a narrative that also comprised intense opposition to measures of social isolation and advocated the use of ineffective drugs against the coronavirus. Thus, around mid-2020, the incumbent President argued that 'no one could be required to be vaccinated' – although compulsory vaccination was provided for in a law sanctioned by the incumbent President himself and arising from a bill that he had sent to the National Congress.

Yet, a relevant institutional difference exists between those moments. At the time of the Vaccine Uprising, such disputes ultimately led to open and physical confrontation among the contending parties and groups. A century later, in the context of the Covid-19 pandemic, the discussion ended in the Federal Supreme Court (Supremo Tribunal Federal or STF).

Since the beginning of the sanitary crisis, the STF has been urged to decide, for example: (1) if the Federal Government could 'monopolise' the administrative competence to face the pandemic, or if such powers should be executed in a concurrent manner with the states and municipalities (STF, Full Court; ADI 6341; Marco Aurélio, Reporting Justice; judged on 15 April 2020); and (2) if the Federal Government could restrict the publicity of epidemiological data related to Covid-19 (STF, Full Court; ADPF 690; Alexander de Moraes, Reporting Justice; injunction issued on 9 June 2020). In these two episodes, the court functioned as a counterweight to the Executive Branch – preventing the incumbent President, in the first case, from expanding excessively, and in a binding manner for states and municipalities, the list of 'essential services' that could not be affected by health measures; and in the second decision, preventing the Ministry of Health from refraining from disclosing complete and updated epidemiological data on the pandemic.

Recent discussions on the constitutionality of mandatory Covid-19 vaccination

In a similar context, in December 2020, the STF was provoked to examine the constitutionality of compulsory vaccination measures.

In the first of a series of cases discussing the constitutionality of Federal Law No 13,979, the court confirmed the constitutionality of 'compulsory vaccination', but established a difference between compulsory vaccination and mandatory vaccination. Pursuant to the decision, there could be a general legal duty to submit to vaccination, the violation of which could allow the imposition of 'indirect restrictions' on those who breached it – such as 'the restriction on the exercise of certain activities or the frequency of certain places'. Actual vaccination, however, could not be executed by force and without personal consent. Moreover, a general duty of vaccination could only be imposed by law based on 'relevant scientific and strategic evidence' sufficient to justify its necessity, adequacy and proportionality.

In the court's words, 'compulsory vaccination does not mean forced vaccination, as the patient’s refusal is allowed, but it may be implemented through indirect measures, which include, among others, the restriction on the exercise of certain activities or the frequency of certain places. It must be provided for by law or arising from it; based on relevant scientific evidence and strategic analysis; supported by extensive information on the efficacy, safety and contraindications of immunisers; and respect human dignity and the fundamental rights of individuals. Further, it must fulfil the criteria of reasonableness and proportionality; and the vaccines distributed universally and free of charge' (STF, Full Court; ADI; 6586 and 6587; Ricardo Lewandowski, Reporting Justice; judged on 17 December 2020; majority decisions). According to such criteria, compulsory vaccination could be determined by the Federal Government, states, Federal District and municipalities – each within the limits of their respective spheres of competence.

Shortly before, the Federal Supreme Court also examined, in an appeal, a public civil action that had been filed by the Public Prosecutor's Office of the State of São Paulo with the purpose of forcing the parents of a child – adherents of vegan philosophy and opposed to invasive medicinal interventions – to comply with a mandatory vaccination schedule established by the government. At the trial court level, the lawsuit was dismissed because of the 'freedom of parents to guide the education and preserve the health of their children' (Articles 227 and 229 of the Federal Constitution); the decision, however, was reversed by the Court of Appeals of the State of São Paulo, which gave prevalence to the interests of the child, his health and the collectivity over parental convictions and preferences. By arguing that 'vaccination campaigns contribute decisively to the prevention and spread of diseases in society', the court even ruled that, if its decision was not complied with, there should be the search and seizure of the child in order to guarantee the proper execution of the mandatory vaccination.

Understanding that the claim encompassed questions around fundamental rights guaranteed by the constitution, the case ended up in the STF. In this case, the STF confirmed the decision of the Court of Appeals and issued a ruling with general repercussion (ie, with binding effects to other courts and tribunals around the country). Pursuant to the STF’s decision, there was no violation of the freedom of conscience and philosophical conviction of parents or guardians, nor of parental authority (STF, Full Court; Extraordinary Appeal with Interlocutory Appeal No 1,267,879; Roberto Barroso, reporting justice; judged on 17 December 2020; unanimous decision).

The leading vote emphasises that 'longstanding Brazilian law provides for mandatory vaccination' and that 'it is legitimate to impose the compulsory nature of vaccines that have registration in a health surveillance body and in relation to which there is a medical-scientific consensus' – also because 'vaccination is important for the protection of society in general, and individual choices that seriously affect the rights of others (need for collective immunization) are not legitimate'. He also warned that 'mandatory vaccination does not mean that someone can be immunized by force… From such mandatory character derives the possibility of vaccination being a condition for the practice of certain acts... or that penalties may be imposed in the case of non-compliance with the obligation'.

Assessment and possible developments

At a close look, there seems to be some tension between the results sustained in referred rulings. In ARE 1,267,879, even 'search and seizure' of a minor had been authorised if his parents had not had him voluntarily vaccinated. This determination, at face value, is contrary to the conclusion presented in ADI 6586 and 6587. If, in the final analysis, individuals cannot be immunised by force, and the authorities can only impose 'indirect restrictions' on those who do not fulfil their 'general vaccination duty', then maybe the most coherent result for ARE 1,267,879 was the extension of 'indirect restrictions' on children who were not vaccinated. The court's conclusion of constitutionality of mandatory immunisation through vaccination in ARE 1,267,879 suggests, thus, that the fact that there is a minor involved had much more relevance than the thesis ('holding') stated by the court explicitly acknowledged. This reading allows us to interpret the three decisions 'with integrity and coherence' manner, as is now required by Article 926 of the Brazilian Code of Civil Procedure.

In any case – it is not known if as an indirect result of the political pressure exerted by the Executive Branch or, in particular, as a reflection of the wide diffusion of the principle of proportionality in the Brazilian constitutional culture from the mid-1990s on – the result of this set of cases suggests the occurrence of a change in the state of the law that existed prior to the Covid-19 pandemic.

The legislation in force clearly provides for compulsory vaccination – and the possibility of imposing 'indirect restrictive measures' did not seem in any way to relativise the duty of submission to vaccination. If the justification for the imposition of compulsory vaccines is to 'prevent the spread of highly contagious diseases', understanding that such a duty could only lead to compulsory 'indirect measures' seems to counteract the purpose that led to compulsory vaccination in the first place – since unvaccinated individuals, although they may be deprived of entering certain environments, will continue to circulate and be vectors of such diseases.

Taking into account the principles of proportionality and human dignity, the court did not hesitate to place such restrictions under a new light – setting forth that no person could be forcibly vaccinated against his/her will and adopting arguments similar to those that appeared, a few months later, in the decision rendered by the European Court of Human Rights in the case of Vavřička and Others v The Czech Republic (ECHR, Grand Chamber; 8 April 2021). Yet, it seems relevant to consider that the pandemic is currently at its peak in Brazil and that new – more contagious and lethal – variations of the virus are already in circulation. Although we expect that the national vaccination plan will soon be successful, we may also consider a scenario in which currently available vaccines and vaccination plans do not lead to the intended results. If national vaccination levels do not reach a threshold that can substantially reduce the circulation of the virus in Brazilian society (and also reduce the occupancy rates for hospital beds to prevent the national healthcare system from collapsing), the Supreme Federal Court may be provoked, in the future, to further develop its current position.