Brazil, Federal Supreme Court, 28 March 2022, No. 947
Case overview
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Link to the full text of the decision
General Summary
The Court heard an "arguição de descumprimento de preceito fundamental - ADPF" filed by the political party “Verde”, in favor of the availability of vaccines and the mandatory vaccination of children, including in school environments, following constitutional precedents (ADPF 754 - 756). The Court reiterated that the mandatory immunization through vaccines included in the National Immunization Program was constitutional. Such obligatory nature did not violate the freedom of conscience and philosophical conviction of parents or guardians, nor did it violate the family power. Considering international rules, it highlighted the State's obligation to provide the entire population with access to the vaccine to prevent COVID-19. The Court granted the claims, recognizing that it was a matter that had already been judged.
Facts of the case
The Green Political Party filed an ADPF action requesting the ordering of vaccines and mandatory vaccination of children, including in school environments, according to some precedents of the Court in ADPF 754 and 756. The Federal District Government accepted a recommendation from the Public Ministry Office (1/2022). It suspended the requirement of proof of vaccination in public schools, claiming it was an experimental vaccination. Additionally, the District Government decided to suspend the vaccination requirement for children between the ages of 5 and 11 in public schools. In this sense, the political party filed a constitutional action requesing that the State Public Ministries refrain from disseminating false news in relation to child vaccination, recognizing, as determined by the health authority, the legality and appropriateness of vaccinating children as a public health policy and not an experimental vaccination.
Type of measure challenged
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Individual / collective enforcement
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Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court verified that the repeal of Recommendation 1/2022 prejudiced part of the claims outlined in the lawsuit. In this sense, it understood that the object had been surpassed.
Despite this, it analyzed the question of the need for and importance of vaccinating children and adolescents. In this sense, it reiterated the jurisprudential thesis that the compulsory nature of immunization through vaccination, registered before a health surveillance agency, is constitutional. In addition, it must be included in the National Immunization Program or have its mandatory application determined by law or by the Union, State, Federal District, or Municipality, based on medical-scientific consensus. In these cases, the freedom of conscience, the philosophical conviction of the parents or guardians, or the family power has not been violated.
Conclusions of the deciding body
The Court concluded that, in procedural terms, much of the discussion in the case had been overcome. However, it emphasized that there exist relevant constitutional grounds to support the mandatory nature of vaccination since it is a governmental action that can contribute significantly to collective immunity or, if accelerated, can save lives, prevent the progression of diseases, and protect, primarily, the most vulnerable. Finally, it emphasizes that there are no doubts about the defense of the right to health and its protection through norms issued by all the federation entities. In the specific case, it only reiterated its jurisprudence and the international commitments assumed by Brazil. For these reasons, it rejected the claim because it lost the objective.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Balancing techniques and principles (proportionality, reasonableness, others)
The Court did not apply any general principle nor weighting technique.
