The recently published reasons with which the Constitutional Court justified the three sentences issued last December 1st with which it confirmed the legitimacy of the obligation of the Covid vaccination for healthcare personnel and related penalties. The Consulta has deemed the provisions legitimate and necessary to protect the “supreme good” of public health based on the assumption – now widely refuted – that the inoculation serves to prevent or slow down the contagion: in reality it has been known for some time that serums mRna do not prevent the transmission of the virus, but rather avoid – possibly – the worsening of the disease. The judgments were all issued in response to the appeals filed by various regional administrative courts which had raised questions of constitutional legitimacy.
In detail, the first sentence rejected the appeal of the Council of Administrative Justice for the Sicilian Region which had in turn raised questions of constitutional legitimacy regarding the vaccination obligation for the prevention of SARS-CoV-2 infection for healthcare personnel , on the one hand, and the suspension from the exercise of the health professions for non-fulfillment of the same, on the other. The Court rejected all the legitimacy issues raised, holding that “the choice made by the legislator in order to prevent the spread of the virus, limiting its circulation, cannot be considered unreasonable or disproportionate, in the light of the epidemiological situation and the available scientific results”. As mentioned, however, it was immediately known that serums were not able to “prevent the spread of the virus” and several studies on the matter had already come out in 2021, so much so that the recommendation was to continue using protective devices individual. In fact, a study published in The Lancet states that «Vaccination does not completely eliminate the risk of infection and therefore personal protective equipment and diagnostic tests must continue to be used until the prevalence of the SarsCoV2 virus is so low to reduce the risk of transmission. Also in The Lancet, in 2022 an article entitled “Transmissibility of Sars-CoV-2 among fully vaccinated individuals” appeared, in which it was reported that the impact of vaccination on the transmission of Sars-CoV-2 and its variants it did not appear to be significantly different from that among unvaccinated people. The study, therefore, explicitly suggested that “current mandatory vaccination policies can be reconsidered”.
The second sentence, on the other hand, answers the questions of legitimacy raised by the ordinary courts of Brescia, Catania and Padua and established that the requirement for social and health workers to be vaccinated rather than undergoing daily diagnostic tests did not constitute a solution that is unreasonable or disproportionate to the available scientific data. For the Court, in fact, «the sacrifice imposed on healthcare workers did not go beyond what was indispensable for the achievement of the public purposes of reduction in the circulation of the virus, and has been constantly modulated on the basis of the trend of the health situation, moreover proving to be suitable for these same purposes”. The Consulta also underlined how “failure to comply with the vaccination obligation has had its effects on the level of obligations and rights arising from the employment contract, resulting in the temporary impossibility for the employee to carry out tasks involving interpersonal contacts or involving, in any other form, the risk of spreading the infection. According to the constitutional judges, the inoculation would have allowed the protection of the health of healthcare personnel and patients, avoiding «the interruption of essential services for the community». Also in this case, however, the facts contradict the version of the consultation, as the hospitals have registered one widespread shortage of medical personnel not only due to the suspension of unvaccinated health workers – who were in any case a minority of the total – but also due to the absence of virus-positive personnel, proving that vaccination did not prevent the spread of the infection even in the wards. Merely by way of example, some newspapers in January 2022 headlined “Covid, hospitals on their knees: 40,000 health workers absent between positive and no vax”. In particular, The morning he wrote that «At least 12,000 doctors and nurses are positive: for at least a week they cannot work. In other words: every day 1,800 health workers discover they are infected and have to leave the ward ».
Finally, the third ruling answers the questions of legitimacy posed by the Lombardy Regional Administrative Court in the case of a psychologist suspended from the order because she lacks the vaccination requirement, despite the fact that he carried out the activity only remotely and therefore there was no risk of spreading the infection. The administrative judges considered the suspension to be in contrast with the principles of reasonableness and proportionality, since the activity does not involve any risk of spreading COVID-19, as it is carried out remotely, through the use of telematic and telephone tools. However, the questions posed were declared inadmissible by the Consulta due to a purely formal reason concerning a preliminary procedural profile, which excluded an assessment on the merits of the same: the lack of jurisdiction of the regional administrative court that raised them. The robes, therefore, would have hidden behind purely formal reasons that prevented us from going into the merits of the matter. It should also be noted that both the sentences and the related reasons could be not without political biasas the editors of the same – Filippo Patroni Griffi and Stefano Petitti – appear to have political ties and positions arbitrarily oriented towards vaccination: the first, in fact, was a member of the Monti and Letta governments, while the second is the author of a podcast on the discipline of the vaccination obligation.
The motivations and choices of the Consulta, therefore, could have been suggested not so much by scientific research, data and facts – which often contradict the reasons of the constitutional judges – but rather by a “pro-government” line influenced by political positions and ideological components that exalt “science” and suppress any right in the name of the supreme good of “health“.
[di Giorgia Audiello]