This article the European Court of Human Rights upholding compulsory vaccination laws was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who 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 a 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. She is also a member of the Vaccines Working Group on Ethics and Policy.
On April 8, 2021 the European Court of Human Rights, in a 16:1 decision, held that the Czech’s Republic vaccine mandate did not violate article 8 of the European Convention on Human Rights, which protects the “right to respect for private life”, because the mandate is within the range of reasonable options available to a country to protect the important interests of the general health and children’s best interests, and its interference with individual rights is proportional.
This is an important decision, since it gives states leeway to enact mandatory vaccination schemes, within certain limits. The quotes here are from the summary, which, from my skimming of the full decision, captures the majority’s decision well.
Compulsory vaccination laws case
The case was brought on behalf of six families. In one, the father has refused to vaccinate his children, and was fined for that failure. In five, children of age to attend nursery school were either refused admission or, after admission, removed from nursery school for being partially or completely unvaccinated.
In addition to the Czech government, the Governments of France, Poland and Slovakia – all of which have also adopted mandatory vaccination schemes – intervened in support of the decision.
The legal framework is the European Convention on Human Right, which is an international treaty signed by all 47 member states of the Council of Europe – which is not the European union but a broader international body.
Article 8 to the convention states that:
“Article 8 of the Convention– Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The court found that while compulsory vaccination laws – referred to by the court as “compulsory vaccination” or “vaccination duty” – did interfere with the respect for private life, it also involved other important interests, including protecting the health of others, including those vaccinated and those who cannot, medically, be vaccinated, it also protected important interests recognized in article 8 – protecting health, and protecting the rights of others, and maybe necessary in a democratic society.
The issue thus involved conflicting important interests, all protected by the clause. There was consensus that “vaccination was one of the most successful and cost-effective health interventions and that each State should aim to achieve the highest possible level of vaccination among its population.” But there was no consensus about the right way to achieve that goal.
Under these circumstances, the Court’s starting point was that there is a permissible spectrum of policy in relation to vaccinating children, and views vary and drew on a variety of values – including health, the level of autonomy due to those opposing vaccination, but also “the value of social solidarity, the purpose of which was to protect the health of all members of society,” including the vulnerable who cannot be vaccinated.
Under these circumstances, the court concluded that “the State’s margin of appreciation should be a wide one”. In United States terms, the Court concluded that states have a wide range of options that would be considered reasonable and that states – in this decision, the term refers to countries, not sub-units in a federal government – can choose.
The choice of the Czech Republic to impose a duty to vaccinate was seen as a reasonable one, for several reasons.
First, States have a duty – under the Convention of Human Rights and elsewhere – to protect the life and health of those within them, and vaccination protects that. The Czech Republic’s medical authorities concluded that compulsory vaccination laws were important to protect individuals and public health because it maintained high rates of vaccines. The Czech government and others were concerned about the harms of a declining rate of vaccination.
Second, there is extensive evidence for the efficacy and safety of these childhood vaccines and a consensus behind the need for high vaccination rates across Europe. It is up to the national authorities to assess priorities and resources in working for these important goals.
Third, it is the duty of States to emphasize the best interests of children in decisions that affect children. Here, “the objective had to be to protect every child against serious diseases”. For most children, this involved vaccinating them on schedule; for the minority that could not be vaccinated, this was done through maintaining herd immunity. If the authorities concluded that “a policy of voluntary vaccination was not sufficient to achieve and maintain herd immunity,” the government could reasonably use a mandate to achieve enough protection against disease.
Here, the policy was based on this concern and hence is consistent with the best interests of the children it focused on and can stand.
In addition to reasonableness, European law generally demands that any limit on right be proportional to the goals it aims to achieve. This proportionality requirement is not part of United States law directly, though we can see rough parallels in, for example, the requirement that limits on fundamental rights be “the least restrictive means possible”. But it’s not an American concept. It really is an assessment of the level of interference.
Here, the Czech compulsory vaccination laws were found proportional to the goals to be achieved because:
- There were exceptions to the duty. There was an exception for children with medical contraindications – what we would call a medical exemption – and an exemption on the basis of a “secular objection of conscience.”
- There was no forcible vaccinating. The requirement did not allow the vaccination of children by force.
- The sanction on the father here was “relatively moderate” – a one-time fine. The children were kept out of school, but that measure was preventive, not punitive, aimed to protect the health of young children, and was limited in time (though it was, as the court acknowledged, a real loss of an “important opportunity for them to develop their personalities and to begin to acquire important” social and learning skills in a formative pedagogical environment.”). When the children reached the age of mandatory school attendance, they could be admitted to elementary school regardless of vaccination status. Note: this does not mean that an elementary school requirement would be found not proportional and struck down; it would depend on the circumstances, whether it was proportional or not in the case in question. Proportionality really is very fact dependant.
The Court ended by reminding us that the question is not whether this is the right policy, but whether the balance chosen by the authorities was within their very wide margin of options. Because of the many reasons supporting the choice, the measure was found as potentially “necessary in a democratic society” – the legal standard – and not in violation of the convention.
The Court found, in essence, that because a mandatory vaccination regime serves important rights, including the right to health of the child and others, the best interests of children – both the children who are directly vaccinated, and the children who cannot be, and who depend on high rates of vaccination – herd immunity – for their safety – it is a reasonable choice by the authorities if they conclude a voluntary vaccination regime would not be sufficient.
Applying the additional standard of proportionality it found that the limited nature of the sanctions and the existing exemptions make the interference in the right proportional to the important goals it achieved. This decision does two things. First, it permits countries subject to the convention to choose a mandatory vaccination regime. Second, it reminds those countries that such a regime does need to be reasonable – in the service of important public goals – and proportional, considering rights and not excessive interference in the individual’s freedom or too punitive.
Like the United States framework, it is a balance.