Eleven years ago a judge authorized, at the request of the Junta de Andalucía, the forced vaccination of 35 schoolchildren to stop a measles outbreak in Granada. Now, in the middle of the search for immunization against covid, a Galician law has opened the debate on the possibility of imposing this measure through fines.
The idea is not new. In Germany, for example, the Bundestag approved in 2019 fines of up to 2,500 euros for parents who do not vaccinate against measles to minors and workers in educational centers and refugee reception after the appearance of several outbreaks in schools.
In Granada the situation was different. It was a judge who ordered in 2010 the vaccination of thirty students to stop an epidemic outbreak of measles in a school, and did so at the request of the regional government, in a decision that caused big uproar in the center and that questioned a minority of parents of the students.
The debate on a possible forced vaccination has been fueled with the approval this week of the reform of the Galician Health Law of 2008, which establishes a legal framework with fines of 1,000 to 600,000 euros for a series of public health infractions, including the “unjustified refusal” of vaccination, in the event that it is declared mandatory. It is, explain some constitutional experts consulted by Efe, of “preparing the ground in case in the future it is decided that it is mandatory” through a norm that tries to supply the “ambiguity” and “parsimony” of the Law of Special Measures in Public Health Matters, 1986.
The rule has quickly aroused the suspicions of the opposition in the Galician Parliament, but also of the Government, which has asked “prudence” pending legal reports to see if it could “suppose a limitation of fundamental rights“And, in that case, it should have been regulated through an organic law at the national level.
While waiting to know if the Executive appeals the rule to the Constitutional Court, there is already a regional leader who has ruled on the matter; the vice president of the Junta de Castilla y León, Francisco Igea, considers that sanctioning the refusal to be vaccinated is not “a disposable measure”, although it is not proposed to implement it given the high degree of acceptance of vaccination in the Community.
Who can regulate it?
Regardless of the opportunity or not of the political debate, the jurists consulted do not have so many doubts about the substance of the law, but about “who regulates it”In other words, if Galicia could be invading State powers, a matter that, some point out, it would be good for the Constitutional Court to clarify.
Lorenzo Cotino, Professor of Constitutional Law at the University of Valencia, admits that “it is not 100% sure” that the Galician Parliament cannot regulate thisAlthough he “would not radically say that it is constitutional”, and believes that, although “it is not the way”, Galicia has tried to cover a “gap” created by a 1986 state law that has proven insufficient.
More blunt is the president of the Health Lawyers association, David Larios, who, although he understands that this law, to this day, “has no practical effects” because it does not oblige vaccination, stresses that, if necessary, a community could not establish such obligation because it would be the responsibility of the state as it affects fundamental rights and, in any way, “it would not be an ideal, proportional or necessary measure.”
On the other hand, the professor at the University of Santiago de Compostela Roberto Blanco does not just see a “problem” because what Galicia does is “develop” a state law in a “highly dangerous” situation that is extended in time and in which the state of alarm cannot be permanently resorted to, although it recognizes that “without a doubt” it should have been regulated by a national law.
All this, the three emphasize, regardless of the debate on whether or not this measure is necessary and appropriate in a country with a high vaccination rate and where, to this day, Larios summarizes, “it would be absurd to impose it when there are not enough doses“.