Wednesday 5 October 2022

Constitutional Court confirms constitutionality of mandatory vaccination

Magistrates pointed out that the public health safeguard justifies the mandatory inoculation for covid-19 by declaring 13 appeals filed by health workers to avoid doses without cause

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QCOSTARICA – Costa Rica’s Constitutional Court or Sala IV as it is commonly referred to, confirmed the constitutionality of compulsory vaccination in the country. The magistrates ratified their position by declaring without cause 13 appeals (recursos de amparo) filed last May by workers of the Caja Costarricense de Seguro Social (CCSS) who refuse to receive the covid-19 vaccine.

Costa Rica began vaccination against covid-19 on December 24, 2020, health personnel were included among the priority groups to receive immunization

In all 13 appeals, the magistrates rejected the allegations and recalled that since October 9, 2020, in resolution 19433-2020, the court made it clear that vaccination was mandatory.

“(…) This Court has recognized, firstly, the importance of vaccination as part of the essential health care that the Costa Rican State must guarantee in order to protect the fundamental right to health of all people, and, secondly, that the protection of public health and the prevention of diseases constitutes a constitutionally legitimate aim that can validly justify the mandatory nature of vaccines,” said the high-ranking judges.

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When analyzing the claims, the Constitutional Court supported the decision of the Comisión Nacional de Vacunación y Epidemiología (National Vaccination and Epidemiology Commission) to establish inoculation against the coronavirus as an obligation, for now, only for the staff of the CCSS, the Ministry of Health and the Instituto Nacional de Seguros (INS).

“The disposition taken is suitable,” said the magistrates.

The Sala IV rulings pave the way for the CCSS to open disciplinary proceedings against officials who refuse vaccination. Along these lines, the entity confirmed this Monday, September 20, the opening, so far, of 35 cases against employees for that cause.

Jairo Barrantes Vargas, CCSS computer scientist who filed one of the appeals for protection, affirmed that despite the ruling, he maintains his refusal to be vaccinated, despite possible consequences.

“I prefer to be fired, the truth is I do not know if they opened a procedure (case) or not, I think not yet because I have not been notified, but at any time they can do it,” said Barrantes.

In their appeals to the Court, the Caja workers made incorrect statements such as that Costa Rica applies vaccines in the experimental phase and that there is no law that provides for their application.

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“When (the vaccines) come out so quickly, logically there is no study, at the same time we are going to see the adverse effects. That is why I refused to get the vaccine (…) I will get to the last point, I would have to reach an agreement (with the institution) to see under what terms they would be doing the vaccination process,” said Greivin Rojas Granados, health technician.

When consulted by La Nacion about their sources of information to make such assertions and data to corroborate their statements, the two appellants were unable to answer clearly.

“Right now I do not have the sources of the studies, but there are studies,” said Rojas.

“The same creator of the vaccine says that many deaths will occur, we have it on video,” said Barrantes.

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“Right now I’m on other things and I can’t give you that information,” replied the computer scientist.

Magistrates pointed out that the public health safeguard justifies the mandatory inoculation for covid-19

Strong regulations

The magistrates’ rulings deny those claims, as the vaccines used in the country are licensed by strict regulatory agencies such as the Food and Drug Administration (FDA). In addition, they completed their clinical research phase III (safety and efficacy), so they do not constitute an experimental drug.

With regard to the legal basis, the court’s ruling emphasized that “there is profuse regulation that expressly establishes the mandatory nature of vaccination.”

For example, article 46 of the Código Civil  (Civil Code) states that “any person may refuse to undergo a medical or surgical examination or treatment, with the exception of cases of compulsory vaccination or other measures related to public health.”

Article 345.3 of the Ley General de Salud (General Health Law) also empowers the Ministry of Health to declare compulsory vaccination against certain diseases and Article 147 of the same legislation establishes that “everyone must comply with the legal or regulatory provisions and practices aimed at preventing the appearance and spread of communicable diseases”.

The magistrates also cited articles from the Ley Nacional de Vacunación (National Vaccination Law).

It was based on these regulations that the decree that made the application of doses against covid-19 mandatory was published last March. This included the vaccine against this disease in the national vaccination scheme and established the duty of receiving it for health personnel, as indicated by the National Vaccination Commission.

“By the time they are summoned by those in charge for this purpose and in accordance with the respective institutional planning, the persons referred to in the previous paragraph must be vaccinated, with the exception of those officials who, due to duly declared medical contraindication, are not able to receive the vaccine against Covid-19. It will be the employer’s responsibility to take the corresponding measures in accordance with the country’s legislation and institutional regulations, in the case of people who do not want to be vaccinated against covid-19,″ reads Executive Decree 42889-S.

That same commission of the Ministry of Health has the power to extend this obligation to another population, if deemed necessary.

Conscientious objection

Apart from the alleged lack of evidence, safety and efficacy of the vaccine, the CCSS employees alleged before the Sala IV that the duty to be vaccinated violated their right to conscientious objection.

Although their arguments had nothing to do with this principle, the magistrates warned that even this right has “limits and limitations”, especially when other rights are weighed.

“It is necessary to resort to the principle of practical agreement and, therefore, it is necessary to make a judgment of balance between the rights that are in conflict,” said the Court.

Therefore, they indicate that invoking this right to avoid doses collides with the right to individual health and that of the community in general, since mandatory inoculation protects health officials and contributes to the proper functioning of hospital services.

Finally, they stressed that the measure is “proportionate in the strict sense” since health personnel are in the first line of combat against the virus and that exposes them to greater risk and that the only argument for not receiving the injection is to demonstrate a medical contraindication.

According to official data, up to this Monday, September 20, the CCSS has applied 4.8 million doses against covid-19, of which 3.1 million correspond to first doses and 1.7 million to second doses.

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