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France: Constitutional Court Confirms Legal Obligation to Vaccinate Children

(June 23, 2015) On March 20, 2015, the Conseil constitutionnel (Constitutional Council) found that the French legal requirement for parents to have their children vaccinated against diphtheria, tetanus, and poliomyelitis was constitutionally valid. (Conseil Constitutionnel (Constitutional Council), Decision No. 2015-458 QPC, Epoux L. (Mar. 20, 2015), Conseil Constitutionnel website.)

The Conseil constitutionnel is the French court with jurisdiction to verify the constitutionality of laws, either as part of the legislative process or, when a law has already been promulgated, by referral from the two other highest courts in the French judicial system, the Cour de cassation and the Conseil d’Etat. (Constitution du 4 octobre 1958, arts. 61, 61-1, 62 (as posted Dec. 13, 2013), LEGIFRANCE.)

The present case involved two parents who were prosecuted for failure to vaccinate their two children against diphtheria, tetanus, and poliomyelitis, as required by French law. (Code de la Santé Publique [Public Health Code], arts. L3111-1 – L3111-3 (version of June 6, 2015), LEGIFRANCE.) The parents had refused to vaccinate their children because, in their view, the three illnesses had almost entirely disappeared in France, the vaccines were not sufficiently safe, and all the vaccines currently on the market immunized against other illnesses in addition to the three legally mandated ones. (Pauline Fréour, L’obligation vaccinale confirmée par le Conseil constitutionnel [Mandatory Vaccination Confirmed by the Constitutional Council], LE FIGARO (Mar. 20, 2015).)

The couple was prosecuted for child endangerment, but they challenged the constitutionality of the legal provisions under which they were being charged. In a procedure called question prioritaire de constitutionalité (priority constitutional question), they petitioned the court to submit a request for the Cour de cassation, France’s highest court for civil and criminal matters, to refer their challenge to the Conseil constitutionnel. (Conseil Constitutionnel, Commentaire, Decision No. 2015-458 QPC du 20 mars 2015 [Commentary, Decision No. 2015-458 QPC of March 20, 2015], at 3.) The Cour de cassation agreed to certify and refer the constitutional question, as it found it to relate to important questions of individual and collective health protection. (Id.)

After considering the arguments, the Conseil constitutionnel decided that the statutes in question were constitutional. It declined to consider the scientific arguments, as this would be the legislators’ role, but it found that the laws in question “are not clearly inappropriate for the intended goal” of protecting individual and public health , and that these laws did not violate any constitutional right or freedom. (Conseil Constitutionnel, Decision No. 2015-458 QPC, Epoux L., supra.)