Don’t want a vaccine? Tough luck, says the European Court of Human Rights

For the first time ever, the ECHR has weighed in on the issue of compulsory vaccinations. And the ruling has major implications for those hoping to avoid their Covid jab.

In a decision bound to generate controversy, the European Court of Human Rights on Thursday ruled against several Czech families who had refused to give their children compulsory vaccinations. The parents had appealed against fines they had received, as well as the children’s exclusion from preschool. The ruling was not on Covid vaccines, but rather on vaccines for nine diseases compulsory for children under Czech law including measles, diphtheria and hepatitis B. The judges voted by a majority of 16 to one that there had been ‘’no violation’’ of Article 8, the right to respect for private life.

The court stated that because ‘’in the Czech Republic the vaccination duty was strongly supported by the relevant medical authorities’’, and in order to ‘’guard against any downward trend in the rate of vaccination among children’’, excluding the children from preschool had in this casebeen “necessary in a democratic society”. This was in spite of what the court called ‘’the loss of an important opportunity to develop their personalities’’. The court also remarked that the children were later allowed to enter primary school despite being unvaccinated.

A wicked problem

Mandatory vaccination is one of the thorniest issues in all of medical ethics, and there is certainly no obvious solution. The dilemma comes from the fact that some vaccines do not only (or sometimes even primarily) protect oneself, but contribute to herd immunity, and thereby protect the entire population. The ECHR cited the protection of others as the main justification for the exclusion of the Czech children from preschool.

It is true that there is a sense in which an unvaccinated person, when it comes to diseases like measles or polio, is ‘’piggy-backing’’ on the herd immunity generated by the majority. Some say this is not fair to the majority who fall into line, and bear the (usually small) risk of side effects on behalf of the unvaccinated. But others would argue that the unvaccinated in a vaccinated population do no harm, and also, do not pressurise others into any medical decisions.

There is also the issue of the inalienable right of every person to refuse medical treatment. It is considered one of the most fundamental rights, concerning bodily autonomy and, in the case of developing genetic therapies, our essential nature itself. Moreover, it is easy to point to examples, historical, dystopian and ongoing, of why the right to refuse medicine is so important.

An example of vaccines that do not protect the receiver at all is the recent push in Ireland to give schoolboys a preventative jab for cervical cancer, called the HPV vaccine. Males obviously cannot get cervical cancer, but they can sexually transmit the human papillomavirus to females who could then, if left untreated, contract it. Is it fair to expect girls to shoulder the vaccination burden alone? Perhaps not… but every mass vaccination programme bears a risk of severe side effects, and all public health decisions have costs and benefits. 

Forced Covid jabs?

The timing being what it is, it is difficult not to draw conclusions on what this precedent means for Covid vaccines. Until now there has been little suggestion in most countries that Covid jabs will be mandatory. The ECHR’s ruling does in theory mean, though, that European countries could force their citizens to take Covid vaccines on the basis of achieving herd immunity. As long as the punitive measures taken against refuseniks are ‘’proportionate’’.

This judgment could fuel the flames of the controversy in Europe on Covid jabs, which so far has centred mainly on so-called vaccine passports. Their rollout has been all but confirmed for all kinds of public places and events, as well as for international travel. While technically there would be no ‘’punishment’’ for not taking the jab, vaccine passports essentially discriminate against the unvaccinated by excluding them from things to which they could freely go before Covid. It is easy to see how with moral grey areas like this, separating ‘’punishment’’ from ‘’privilege’’ quickly becomes a game of semantics.

New abnormal

The ruling of the ECHR against the Czech families may once have been shocking, but in the current climate, it is hardly surprising. The assurances and guarantees to choose their own medical treatments many people had assumed would protect them under law turned out not to have been as rock steady as they thought.

I have made no case for or against Covid vaccines here, but I will say that it was not so long ago when politicians assured us that there would never be any undue pressure put on people to take them. Fast forward a few months and vaccine passports look like a nailed-on feature of the new normal, there never having been a proper debate on the matter.

True, there are always some lonely voices who raise concerns, but in the face of the vast silence of the political and media classes on the matter, it is just howling into the void. Everything is beginning to take on an air of inevitability, and the course of the next few months looks, at least in some aspects, increasingly predictable. Somehow, that is more frightening to me than an unknown future.

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