The Constitutional Court’s Solution on Children's Vaccination and Their Access to Educational and Recreational Institutions

On Tuesday, 30 October 2018, the Constitutional Court of Moldova delivered a judgment on the constitutionality of Article 52 para. (6) of the Law no. 10 of 3 February 2009 on State oversight of public health and para. 21 subparagraph (1) let. e) of the National Immunisation Programme for 2016-2020 years, approved by the Government Decision no. 1113 of 6 October 2016. 

The circumstances of the case
The case originated in an application lodged with the Court on 1 October 2018 pursuant to Articles 135 para. (1) let. a) of the Constitution, 25 let. g) of the Law on the Constitutional Court and 38 of the Law on the Constitutional Court and 38 para. (1) let. g) of the Code of constitutional jurisdiction, by the Member of Parliament Vladimir Odonostalco, asking for a constitutional review of Article 52 para. (6) of the Law no. 10 of 3 February 2009 on State oversight of public health and para. 21 subparagraph (1) let. e) of the National Immunisation Programme for 2016-2020 years, approved by the Government Decision no. 1113 of 6 October 2016.

The challenged legal texts provide that the admission of children to communities, educational and recreational institutions is being made contingent upon their systematic prophylactic vaccination.

The applicant claimed that the said provisions do limit, inter alia, the access of children to education.

The Court’s assessment
Having regard to the relevance of the submissions, the Court assessed the case in light of Articles 28 (safeguarding the right to private life) and 35 (safeguarding the right to education), in conjunction with Article 16 (safeguarding the principle of the equality) of the Constitution.

The Court observed that the issue raised in this case – making the admission of children to communities, educational and recreational institutions contingent upon their vaccination – represents a practice challenged before the superior courts of other states. For instance, the case of Zucht v. King, 260 U.S. 174 (1922) delivered by the Supreme Court of the United States of America represents a similar situation to this one. Before the US Supreme Court were challenged the ordinances of the City of San Antonio, Texas which made vaccination a condition to attendance at public and private schools. Mr. Justice Brandeis delivered the opinion of the Court, emphasising that these ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health. Therefore, the claims made by the plaintiff Rosalyn Zucht were dismissed, as they did not pose a substantial problem in light of the Constitution.

The Constitutional Court of Serbia delivered by the Decision no. IUz-48/2016 of 26 October 2017 on the constitutionality and consistency with certain treaties ratified by Serbia of the Law on the protection of population against communicable diseases. Assessing the allegations that, as compared to children who have been vaccinated, children who have not been vaccinated were discriminated against because they were deprived of their constitutionally guaranteed right to education, the Serbian Court found that children’s attendance in educational institutions is conditional on their vaccination. This could not be brought into a constitutional legal relationship with discrimination in respect of the right to education. The reason for this is that all children in certain age groups are subject to vaccination, except for those where it is, for health reasons, contraindicated. That obligation, in accordance with the principle of equality of all before law, equally refers to all persons who are included in a group. Anyone who refuses vaccination, that is to say, does not fulfil the prescribed obligation, may not be considered discriminated against in relation to those persons who have fulfilled the obligation, because they are not in the same or a similar situation.

At this stage, the Court noted preliminary that the challenged provisions are clear enough for their recipients (i.e. children’s parents/tutors and the competent authorities). Accordingly, it considered that the standard of quality of the law has been met. 

The Court also noted that the legitimate aims pursued by the challenged provisions envisage the protection of children’s health and public health from severe illnesses which spread more when the vaccination rates are lower. The means chosen to achieve these goals impose a restriction on access of unvaccinated children who have no contraindications to this effect for a limited period of time, until their vaccination. The Court found that for the time being there is no other less intrusive measure for the right to private life and to education that would equally efficient achieve the aims pursued.

Next, the Court had to balance the principle of health protection with the principles of access to education and respect for private life.

The Court had to consider the premise of a reduced risk of vaccination and its significant benefits, as shown by a broad consensus in the medical scientific community.

The Court emphasised that the refusal to vaccinate a child who has no contraindications does not only entail the legal prohibition of admitting him to communities, educational and recreational institutions, but also the risk of him contracting an illness. The harm brought to his health has also negative effects on other rights he is entitled to enjoy.

At the same time, the Court held that there are children whose vaccination is contraindicated but who can be admitted to communities, educational and recreational institutions. The health of these children is under risk by a possible admission to these communities and institutions of unvaccinated children who have no contraindication in this respect and who may be carriers of communicable illnesses. The consequences of an individual's action on his innocent peers cannot be ignored. In this case, the rights of the individual are not exercised in an existential vacuum, but in an organised society.

Restricting the admission of unvaccinated children, but who could be vaccinated, to communities, educational and recreational institutions does not amount to an extremely drastic measure with respect to the right to education and the right to respect for private life. The children of parents who do not wish them to be vaccinated, although there are no contraindications to this, have alternative means to learning. Also, from the point of view of leisure opportunities for the children of parents who do not wish them to be vaccinated, although there are no contraindications in this respect, the exercise of social private life is not a central aspect of their right to respect for private life.

The claims of parents who wish for their unvaccinated and vaccinated children to participate in the social life by their admission to communities, educational and recreational institutions have an important weight, but do not exceed the importance of health protection of innocent people.

Moreover, the Court noted that the differential treatment of vaccinated children compared to children who are not vaccinated but who could be, from the point of view of their admission to communities, educational and recreational institutions, is objectively justified and reasonable.

Accordingly, the Court held that the provisions of Article 52 para. (6) of the Law no. 10 of 3 February 2009 on State oversight of public health are consistent with Articles 28, 35 and 16 of the Constitution, to the extent they are not enforceable with respect to children who have reasoned and documented counterindications. The provisions of para. 21 subparagraph (1) let. e) of the National Immunisation Programme for 2016-2020 years, approved by the Government Decision no. 1113 of 6 October 2016 do not violate Articles 28, 35 and 16 of the Basic Law, either.

Conclusions of the Court
Considering the foregoing, the Court declared admissible the provisions of Article 52 para. (6) of Law no. 10 of 3 February 2009 on State oversight of public health, insofar they are not enforceable with respect to children who have reasoned and documented contraindications.

It declared constitutional the provisions of para. 21 subparagraph (1) let. e) of the National Immunisation Programme for 2016-2020 years, approved by the Government Decision no. 1113 of 6 October 2016.

This judgment is final, it cannot be appealed, shall enter into force on the date of its adoption, and shall be published in the Official Journal of Moldova.

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This a courtesy translation of the original text available in Romanian language.