July 15, 2021
In France, nearly two million people made an appointment for the vaccine after Macron announced theobligation of the Covid certificate to access bars, restaurants, theaters, shopping centers and public transport. A draconian measure – and bordering on unconstitutionality – but considered the improper weapon necessary to save the summer holidays and the economy and to prevent an exponential resumption of infections in the autumn.
The Italy of politics, a mirror by now conforming to the moods on social media, has already divided between the Guelphs and the Ghibellines of the vaccine. The objections are not strange: we pass from “the green pass in restaurants is a demented idea. Who should check it out, the waiters? And in what capacity? Or alternatively I have to find the policemen while I eat? “, To” if the State imposes mandatory health treatment, even if the medium and long-term effect is admittedly unknown, the citizen is forced to choose between certain civil death and a possible permanent biological damage “. On the other side of the fence, we read equally succinct arguments: “If to defend in the name of I don’t know what the freedom not to vaccinate ignorant egoists in October we will be forced to close everything with relative social, cultural and economic catastrophe, I will greet you and with my green pass I will move to France ”.
Let’s try to clarify starting from an objective fact: in Italy the vaccination plan of Commissioner Figliuolo is proving to be excellent, but it can be seriously thwarted by almost three million over-60s still undecided, and the mobilization of general practitioners and pharmacists risks not being sufficient, because autumn is near, together with the reopening of schools, considered the greatest risk factor. And if the path of the mandatory French green pass is not feasible due to the motivated objections of those who consider it an unacceptable illiberal measure, which would also jeopardize consumption and tourist recovery, at least for the 200 thousand teachers still not vaccinated, introduce the obligation as for health workers it should not be considered a heresy.
In this regard, re-reading constitutional jurisprudence can help: there is a fairly recent ruling by the Consulta, signed in 2018 by the current minister Cartabia, which establishes that “the legislator can choose the methods by which to ensure effective prevention from infectious diseases, being able to select the technique of recommendation, sometimes that of obligation, and, in the second case, variously calibrate the measures, including sanctions, aimed at guaranteeing the effectiveness of the obligation“.
The sentence is part of a well-established furrow in the field of vaccinations, according to which article 32 of the Constitution “postulates the necessary reconciliation of the individual’s right to health (also in its content of freedom of treatment) with the coexisting and reciprocal right of others and with the interest of the community. Then a law imposing a health treatment is not unconstitutional if the treatment is aimed not only at preserving the state of health of the individual citizen, but also at protecting the state of health of the community.
Therefore, the constitutional values involved in the issue of vaccinations are multiple “and their” reconciliation leaves room for the discretion of the legislator in the choice of the ways in which to ensure effective prevention from infectious diseases, being able to select sometimes the technique of recommendation, sometimes that of the obligation, as well as, in the second case, variously calibrate the measures, including sanctions, aimed at guaranteeing the effectiveness of the obligation “.
Leaving the legal system, it is up to the government and the Parliament to decide, on the basis of the epidemiological evidence, the tools deemed most suitable to avoid a new exponential increase in infections. Salvini, coming out of the meeting with Draghi, made it clear that the premier is not inclined to more extreme solutions such as the French ones. But the green pass is already used in some areas, such as weddings, RSAs, stadiums and events. A third way is therefore possible to get out of the Guelph-Ghibelline logic.