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President Bolsonaro said that ‘no one can force anyone to get vaccinated’
On Tuesday (09/01), President Jair Bolsonaro said that “no one can force anyone to get vaccinated”, referring to a possible future vaccination campaign against covid-19.
The statement was criticized by doctors, infectologists and constitutionalists: according to them, discouraging vaccination is unconstitutional and can bring serious damage to the fight against the pandemic and other diseases.
Bolsonaro’s speech was published on social media by the government’s Communication Secretariat. “The Government of Brazil has invested billions of reais to save lives and preserve jobs. It has established an association and will invest in the production of vaccines. Resources for states and municipalities, health, economy, EVERYTHING will be done, but impose obligations is definitely not in the plans, “he wrote. the body, on Twitter, accompanied by a banner with the president’s phrase and the words that the government “values the freedom of Brazilians.”
Brazil has already registered more than 122 thousand deaths from covid-19, in addition to almost 4 million infections.
If, on the one hand, Bolsonaro’s speech can further encourage the growth of the anti-vaccine movement, doctors say, on the other hand, she is wrong and it would be unconstitutional, according to constitutionalists heard by BBC News Brazil.
The Brazilian Constitution allows the government to create mechanisms to force people to get vaccinated; not only can he do it, but he has a duty to do so, explains Roberto Dias, professor of constitutional law at the FGV (Getulio Vargas Foundation).
This is because, in cases like this, Justice puts two rights at stake: on the one hand, individual freedom and, on the other, public health – and, in the case of epidemics of diseases that are a clear threat to public health, as in covid-19, the right to public health prevails, says Dias.
“No fundamental right is absolute, that is, the right to freedom is not absolute to the point of being above the right to health of other people,” says professor of constitutional law Estefânia Barbosa from UFPR (Federal University of Paraná).
There are several provisions in Brazilian law that allow compulsory vaccination, from the Constitution to a law signed by President Jair Bolsonaro in February, Law 13,979, which authorizes authorities to take measures such as making vaccination compulsory.
Everyone has a right, a state duty
If science finds an effective and safe vaccine against covid-19, the government has the possibility and the duty to promote its application and make it available to Brazilians, Dias explains. This is because article 196 of the Federal Constitution determines that health is a right of all and a duty of the State.
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Doctors say that not getting vaccinated out of ideology can harm people who can’t get vaccinated due to health problems.
The state has a constitutional obligation to implement social policies aimed at reducing the risk of disease, Dias says.
“At a time like this, when vaccines, provided they have passed all the tests and are recommended by health authorities, are possibly the best response to the pandemic, the government has the obligation to disseminate, encourage and guarantee a broad public policy vaccination ”says Roberto Dias.
For this reason, the constitutionalist defends, the president’s statements that discourage vaccination damage this duty and are unconstitutional.
“The objective dimension of the right to health means that the public power has the duty to guarantee this right to all people, regardless of individual or collective claims,” explains Estefânia Barbosa, professor of constitutional law at the UFPR (Federal University of Paraná).
And not getting vaccinated is not just a matter of individual choice, it is an attitude that affects the entire community, explains scientist Fernando Rosado Spilki, president of the Brazilian Association of Virology.
“If an important part of the population is not vaccinated, the virus continues to circulate at levels that allow its prolonged maintenance in the population, causing obvious damage to health and therefore to the economy, in addition to all other aspects affected by possible quarantines “, Explain.
According to Spilki, choosing not to get vaccinated against COVID-19 for ideology or for any other reason could harm people who cannot get the vaccine due to medical problems. “It must be taken into account that the virus ends up reaching people who, even if they wanted to, did not have access to the vaccine or could not be vaccinated for other diseases, such as immunosuppressed patients, undergoing cancer treatment, etc.”, he says.
“Not adhering to the vaccination will be, above all, lack of civility, public commitment and respect for others, solidarity,” says Spilki.
Renato Kfouri, director of the Brazilian Society of Immunizations (SBMi), also highlights the citizen nature of getting vaccinated. “We have in vaccines the best tools for individual and public protection. When you get vaccinated, you are not only protecting yourself, but the community,” he says.
For Isabella Ballalai, vice president of SBMi, says that the president’s speech can “even more confuse (people) at a time when everything is already quite confusing.”
“An example of what can happen with the decrease in vaccine coverage is measles. Brazil has been without measles for several years and now has thousands of cases because a small part of the population has not been vaccinated,” he explains.
According to Ballalai, Bolsonaro’s speech even goes against the actions of the Ministry of Health itself. “The Ministry’s national immunization team has been working hard to catch up on vaccination coverage, which fell due to the pandemic. So this statement is contradictory to the government’s own actions, as well as irresponsible,” he says.
According to Rômulo Leão Silva Neris, a PhD candidate in inflammation and immunity at the Federal University of Rio de Janeiro, so-called herd immunity (when the majority of the population is immunized against a disease) was achieved in the modern era thanks to vaccines.
“Several diseases have been eradicated or are under control because we have had efficient vaccination programs. Vaccines are capable of preventing the circulation of their causative agent (of the disease) in society. That is why it is essential that any vaccination campaign reaches as many people as possible, “he explains.
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Several vaccines are being studied in countries such as the United Kingdom, the United States and China
Experts also claim that if the government runs a good vaccination campaign and makes it available and easily accessible throughout the country, it may not even need to be enforced: there have already been several very successful vaccination campaigns in Brazil. without getting vaccinated was mandatory.
Individual freedom versus collective right to health
The legal question about the right to individual freedom versus the collective right to health in the case of vaccines recommended by health authorities is already quite resolved in Brazil, the constitutionalists explain.
The government cannot create a vaccine in which people are physically forced to get vaccinated, Dias says. The compulsory vaccination effort is carried out “through mechanisms (so that they are vaccinated), such as conditioning the exercise of certain vaccination rights.”
That is, it is possible to create rules that restrict access to rights, such as travel, government benefits, etc. – if the person refuses to be vaccinated. It is something that works more or less in the same way as compulsory voting, in which, if the person does not vote or is not justified, she loses rights such as signing up for a public contest, obtaining a passport, etc.
This, in fact, is already provided for in Brazilian legislation in several cases. The rules that regulate the distribution of Bolsa Família, for example, state that certain conditions are required to deliver the benefit, including updating the children.
The Statute of Childhood and Adolescence, in article 14, also establishes that parents have the duty to vaccinate children and may be fined if they do not do so.
“We already have several laws that restrict individual freedom for the collective good and that do not imply a breach of the Constitution,” explains Barbosa.
“Our reading of individual law is not disconnected from collective life,” says law professor Wallace Corbo, from FGV-Rio.
Believing conspiracy theories (like vaccines cause autism, which is false, according to science) is not a legitimate reason to put other people’s health at risk, explains Corbo.
The constitutionalist affirms that if the Brazilian health authorities approve the vaccine, recommend its use and guarantee its safety, there is no reason for an individual to argue that the vaccine violates their individual rights.
“Today the greatest risk for you to get some vaccinations is to have some symptoms, or we can talk about the disorder of having to leave home to take it,” he says.
“We weigh the collective benefit against the individual risk of the vaccine, and since the risks of vaccines approved by the authorities in general are very small, we consider that mandatory vaccination does not violate any fundamental right. In fact, collective health is a condition for the exercise of rights. “
Corbo affirms that the individual may have a truly legitimate reason for not being vaccinated – such as being immunosuppressed, for example – and in these cases is fired in case of obligation. But it is precisely to protect these people who cannot be vaccinated that mass vaccination is important, the doctors explain.
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