Lorenzo Rampa

Self-determination and Coercion in Vaccination Law. A Non Legal Approach

  • Abstract

Informations and abstract

Keywords: Compulsory Vaccination; Vaccine Hesitancy; Nudges; Public Goods.

This article deals with the difficult balance between obligations and individual autonomy in vaccination law in light of the recent Italian Constitutional Court's ruling n. 5/2018 on the appeal of the Veneto Region against the d.-l. n. 73/2017. The appealing Region inter alia considered mandatory immunisations to be illegitimate on the basis of the «constitutional value» of individual self-determination. After discussing the conditions for interfering with personal autonomy by using the Mill's distinction between «harm to self» and «harm to others», strategies based on information and persuasion are examined. Recently these strategies have been treated as the «nudges» proposed by behavioral psychology and economics as forms of libertarian paternalism more respectful of personal autonomy. However, the nudges are more suitable for remedying the internalities that can affect the parents' vaccine hesitancy, while public policies must also face problems of externalities and public goods. Considering the preservation of herd immunity as a public good to which everybody has to contribute, recommendations and persuasion may be insufficient. Anyway, by suggesting the suspension of the mandatory immunization in case of high coverage, the Court's decision envisages a vaccination policy according to which obligations, in case of insufficient coverage, are added to - rather than replace - other strategies.

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