A constitucionalidade da vacinação obrigatória por medidas indiretas no Brasil: a proporcionalidade aplicada aos direitos fundamentais à liberdade e à saúde pública

Abstract

The theme of this dissertation revolves around the imposition of vaccination through indirect means, such as the requirement of а vaccination passport to access certain venues, examined through the lens of the proportionality criterion. This study specifically explores the fundamental right to freedom, lato sensu, and the social right to health, to analyze the constitutionality of these measures. Moreover, it reviews recent decisions by the Brazilian Supreme Federal Court on mandatory vaccination based on proportionality. This research aims to address the questions: 1) whether the indirect imposition of vaccination in а pandemic context, as implemented in Brazil during covid-19, is constitutional, considering the fundamental rights to freedom and health based on the proportionality criterion, and 2) whether the mentioned decisions align with said criterion. The objectives are to examine the constitutionality of mandatory vaccination under the proportionality principle, considering the fundamental rights to freedom and health, and to analyze the concept and application of proportionality by the Supreme Federal Court concerning the proposed theme. This is а qualitative research, that uses an eminently deductive method, utilizing bibliographic and documentary sources, including constitutional and infraconstitutional norms, judicial decisions, scientific articles, books, dissertations, theses, and others. The justification for this work lies in the relevance and timeliness of the issue of mandatory vaccination, which has sparked heated debates in society and the legal community regarding the limits of freedom and public interest, adding to the need to deepen the study of proportionality, which appears to be inadequately applied by the Supreme Court. The dissertation concludes that 1) the obligation to vaccinate in the context of covid-19 is constitutional, as it is an intervention in freedom justified by the social right to health, and that 2) the aforementioned decisions of the Brazilian Supreme Court on the topic do not show convergent foundations or an adequate application of proportionality