The Corrientes judge rejected the defense of marriage due to restrictions during the pandemic

The couple raised the unconstitutionality of Provincial Decree No. 157/21 and the municipal resolution that adhered to it, deeming it arbitrary and illegal to present a health pass as a requirement for access to two clubs and a shopping mall during the height of the COVID-19 Pandemic season . The presentation of the amparo was also made on behalf of their minor children.

Specifically, what was questioned was the display of the full vaccination card to be able to enter these private spaces. They emphasized that the administration of vaccines developed during the health emergency is “compulsive” and “they don’t want to get it” except that they feel conditioned by this requirement.

They justified their petition by stating that “no one shall be compelled to do what the law does not command or be deprived of what the law does not forbid.” They pointed out that standard 27491 already establishes the obligation, modality, deadlines and vaccines that make up the national calendar, and that those of an experimental nature are not included. They called them “indirect measures of convergence”.

They consider that Law 26,529, which regulates “The rights of patients in their relations with health professionals and institutions”, should take precedence, since in this regulation the autonomy of the will and the confidentiality of the medical act are valued, in the sense that no one may require another to report whether or not they have been vaccinated.

Dr. Liliana Reyna, head of Civil and Commercial Court No. 7, understood that the main question revolves around whether the health card is mandatory or not. And for this, it would be necessary to analyze an infinite number of situations, including an inquiry into the expansion of measures of a preventive nature adopted by public and private entities, as well as the current situation within a host of other issues with the input and intervention of more experienced third parties in material unprecedented in the world for 100 years.

“Such a wide-ranging debate, where there is not even a globally agreed upon criteria, could logically and naturally never be clarified in a simple amparo action,” the magistrate pointed out.

However, in this limited process, which is the amparo action, Dr. Reyna stressed that in the exercise of free will, any person – of legal age and capacity – can decide whether or not to be vaccinated, as long as the optional vaccination against COVID-19 is explicitly established in Resolution No. 2883/2020 of the National Ministry of Public Health.

It emphasized that “The number of people who died in the years 2020 and 2021 is not enough to reflect the anxiety and sorrow that all humanity has experienced, and without going into statistics, from the information provided by mass media, until the mass arrival of vaccines, everyone was informed about how to take care of themselves and was free to make the decision they thought best. This objective data found the solution.

It stands out that from the very high rate of serious hospitalizations and deaths in the first year of the pandemic (when vaccination was not yet a health plan) and the subsequent drastic reduction of these figures due to the mass discontinuation of vaccination, the date on which the “full schedule” has importance since, according to data published in the media, the majority of deaths and hospitalizations occur in unvaccinated people or with an “incomplete schedule”. and deceased), added to mass vaccination, the conditions of access to public and private spaces gradually changed; without this implying the disappearance of some standards of care until there is an official declaration of the end of the pandemic.

Finally, the judge satisfied that there was no manifest illegality or arbitrariness, nor was any illegal or arbitrary action noticed, and failing to examine the essential requirements of the encouraged action, dismissed it. He specifies that the main issue on which the jurisdiction was issued in the said decision (that is the liability or not of the sanitary pass) is firm to date, the only issue on appeal being that related to the imposition of costs (for the order caused ) .

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