Freedom to ignore French vaccination program – a court case

Samia and Marc Larère, parents to a three year old and fifteen months old, have decided not to vaccinate them. A criminal charge was brought against them, by the government of France, for not giving their three year old the required vaccines against diphtheria, tetanus and polio according to the French vaccination program.

They were charged under two legal provisions–a provision in the Code of Public Health (le code de la santé publique, art. L.3116-4) that imposes a find of 3750 euros and up to six months in jail for those who do not receive, or allow those under their guardianship to receive, mandatory vaccinations, including parents (“Le refus de se soumettre ou de soumettre ceux sur lesquels on exerce l’autorité parentale ou dont on assure la tutelle aux obligations de vaccination prévues aux articles L. 3111-2, L. 3111-3 et L. 3112-1 ou la volonté d’en entraver l’exécution sont punis de six mois d’emprisonnement et de 3 750 Euros d’amende”).

And a provision in the criminal code that criminalizes neglect of parental duties “to the point of risking the health… of a minor child”, with a fine of 30,000 euros and up to two years in prisons as penalty (article 227-17: “Le fait, par le père ou la mère, de se soustraire, sans motif légitime, à ses obligations légales au point de compromettre la santé, la sécurité, la moralité ou l’éducation de son enfant mineur est puni de deux ans d’emprisonnement et de 30 000 euros d’amende”).

The reason the Larères initially gave for declining to vaccinate their child was that they could not give her only the required vaccines–the only available vaccines, they said, had the required vaccines in combination with others, like Hepatitis B and meningococcal, which are not legally required and they were not willing to give the combination vaccine to their child.  Upon further probing, however, the couple admitted they received a vaccine containing only the required vaccines from Sanofi Pasteur, but still refused to vaccinate claiming that the vaccine contained a “toxic product”.

It may have been this vaccine (pdf). It’s unclear which ingredients they were referring to. The product contains a number of ingredients that may be used to raise concern among those unfamiliar with their role in vaccines and the principle that the dose makes the poison. In fact, in the tiny amounts in vaccines (pdf), none of these ingredients is toxic (pdf).

The Constitutional Claim:

 

In the trial, the parents’ lawyers apparently claimed that the right to health, included in the preamble to the Constitution of the Fourth Republic, clashes with the two provisions mentioned above.

France, like many countries in Europe, has a specialized constitutional court, the Constitutional Council–Conseil Constitutionnel–since the establishment of the Fifth Republic in 1958, but until recently, the role of the Council was limited to abstract review of statutes.

After a statute was enacted but before it was promulgated (the official act of publication that gave it force), a small number of actors–the President of the Republic or of one of the legislative chambers, or, more commonly, 60 members of the opposition of either legislative house, the Senate or the Assembly, could challenge it before the Council, which would review its constitutionality. We call this abstract review because it’s not in the context of a concrete case.

The Fifth Republic’s Constitution did not include a bill of rights, but in 1971 the Council read in two texts enshrining rights: the 1789 Declaration of Rights of Man dna of the Citizen and the preamble to the Constitution of the Fourth Republic, which did include a bill of rights with social rights, including the right to health (). Since then, the Council has required statutes to respect these Constitutional Rights.

Since 2009-2010 he Council is no longer limited to abstract review. In a new law France created the option of a Question Prioritaire Constittuionelle (QPC), allowing lower courts to direct constitutional questions that arise during a case to the Council. Under this model, if a case before a judge raises a constitutional question the judge is required to stop the case and refer the question to a court authorized to solve it. Other European countries already use a similar system: e.g. Italy or Germany lower courts may directly refer the case to the Constitutional Court (pdf).

The French did not go quite as far as allowing low-level courts to refer cases – they added an intermediary step: a lower court facing a constitutional question must refer it to the highest court in the relevant hierarchy: the Cour de Cassation, if the case is a civil or criminal case, or the Conseil d’etat, if the case is an administrative case.

The highest court – in this case, the Cour de Cassation–will certify whether the case meets the criteria for referral (pdf):

[infobox icon=”quote-left”]The contested provision of law must:

  • be relevant to the case, or
  • be the basis for the claim 
not have been already reviewed by the Constitutional Council
  • unless there has been a change in circumstances or law the QPC must not be frivolous.[/infobox]

The case is put on hold until the Court de Cassation rejects the demand or, if it approves it, until the constitutional issue is resolved by the Conseil Constitutionnel. The Conseil Constitutionnel will have three months to decide from the moment the issue is submitted to it.

At this point, the Larères’ criminal case is before the Cour de Cassation, which needs to decide if to certify the question for consideration by the Conseil Constitutionnel. If the answer is no, the lower court will implement the provisions of the law. If the answer is yes, the Conseil Constitutionnel will decide whether the provisions are constitutional.

protecting-children-vaccines

Analysis

 

I want to address two points here:

  • Even if the case proceeds to the Conseil Constitutionnel, the Conseil should uphold the provisions of the law.
  • Second, while I do not, in fact, support a criminal sanction on parents who do not vaccinate, the United States can, and maybe should, consider placing an administrative fine on those who do not vaccinate. Jacobson v. Massachusetts, 197 U.S. 11 (1905), found it constitutional to impose a criminal fine, and has been relied on by numerous other courts. An administrative fine–without creating a criminal record–should create even less of a constitutional issue.

There is no Tension Between Vaccine Mandates and A Right to Health: The Converse is True

It’s important to remember that the right to health in question here is not the right of the parent but that of the child. It’s pretty clear that the current provisions requiring vaccination do, in fact, protect a child’s right to health–it’s not vaccinating that would put the child at risk.

No medical procedure is 100% safe, but serious problems from modern vaccines are extremely rare.

In this case, the vaccines in question are the diphtheria, tetanus, and inactivated polio vaccine ones. What are their risks?

In contrast, all three diseases are extremely dangerous, and can kill or maim.

A child’s right to health works the other way here. The right to health supports requiring the parent to provide the child the very low-risk protection of the vaccines against these dangerous diseases. Any other decision will simply be an error.

One vaccine whose absence is glaring from the mandated list, given the recent extensive measles outbreak that killed children in France, is the MMR. The legislature would do well to consider adding it and protecting children from that dangerous disease.

The United States Should Consider an Administrative Fine for Parents who Do Not Vaccinate

I have said elsewhere and still believe that it is inappropriate to impose criminal sanctions on parents who do not vaccinate a child barring special circumstances. With so much frightening and misleading information about vaccines out there, with rates of diseases still low thanks to high vaccination rates, parents choosing not to vaccinate are making the wrong choice, but their culpability is not at the same level as that of a parent refusing insulin to a diabetic child or antibiotics to a child with a treatable infection, or a parent that starves a child.

Criminal law is a heavy-handed weapon, and should be limited to exceptional circumstances. I think prosecutors would have done better, in this case, to limit the claim to the clause in the Public Health Code, assuming they felt they needed to respect the legislature’s wishes by enforcing the immunization mandate, rather than bringing a neglect claim.

But a clause like art. L.3116-4 that imposed just a fine, without imprisonment–and made the offense an administrative one, rather than a criminal one–makes sense, I think. Non-vaccinating has the potential to impose costs on the public. Elsewhere, my co-authors and I discussed ways to recoup such costs to the public purse.

We did not directly discuss an administrative fine. But there is always room to learn from other countries. We impose fines for conduct that can harm the public in other contexts. We can do so here by passing a statute authorizing a fine on any family that chooses not to vaccinate without a legal exemption (the exemption discussion is a separate one) – and allow health departments to collect the fine following the usual administrative process to collect fines in that state, either through enforcement via a court or via an administrative process.

Update 1

 

On 2015 March 20 the French Constitutional Council upheld the constitutionality of a criminal penalty for parents who do not vaccinate.

To be convicted, of course, the elements of the offense need to be filled. Hence, when a father was charged with not vaccinating before the age compliance is demanded – the child was 14 months and the vaccines are required at 18 months – he was acquitted. However, this case reinforces the general point: parents who fail to vaccinate by the required age, 18 months, may face criminal sanctions.”

Update 2

 

On 7 January 2016, a French court in Auxere, 175 km south of Paris, sentenced Marc and Samia Larere to a two-month suspended jail sentence for refusing to vaccinate their two young children. As stated above, the original offense of not vaccinating their children carried a maximum of two years in prison and a €30,000 fine.

 

Editor’s note: This article was originally published in October 2014. It has been revised and updated to include more comprehensive information, to improve readability and to add current research.

Dorit Rubinstein Reiss
This article is by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy and the law. 

Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.