The mandatory vaccination debate is currently like the Delta variant recently. Just as Omikron pushed the predecessor virus out of the pandemic, the call for easing is currently overriding the demand for a general obligation to immunize. But having learned that the pandemic is dynamic, you know Delta can come back. And the compulsory vaccination hype as well.
The question of whether such a duty would be constitutionally permissible at all has already been examined many times and the majority of the answers have been yes. According to this reading, the ball is in the political arena. But, is this really the truth? Would the green light be expected from Karlsruhe if such a law were to be passed? Stephan Rixen, professor of public law at the University of Bayreuth and member of the German Ethics Council, answers the question roughly as follows: Whether such a law would be compatible with the Basic Law can only be answered if you know the law, namely in the Detail. And, particularly important in this case – including justification.
That sounds banal, but in the dynamic Corona context it has far-reaching consequences. A legal obligation to vaccinate means a considerable intervention in physical integrity. This is not a trivial fundamental right. It must therefore be clear what purpose it serves and what the vaccinees are actually supposed to be protected against. And above all with what. Since such a law can no longer be drafted for the current wave, this is a calculation with many unknowns. Will we still have Omicron in the fall, or will Delta be reloaded, or will we already be at Ypsilon in the Greek alphabet? Will the virus then be more infectious or more deadly or both, or will it lose its terror? And how effective will the current vaccines be? Only if one can assess all of this with some degree of seriousness can one answer whether an encroachment on fundamental rights can be justified.
It’s about the danger to the community
This requires a legitimate goal at the first stage. Sure, health protection – but even here you have to take a close look. Because since enough vaccine has been available, everyone can significantly reduce the risk of serious illnesses on their own responsibility. Those who do without the vaccine and accept the risk act in an autonomous decision. Incidentally, even with life-threatening illnesses, everyone is free to refuse medical treatment.
So, on closer inspection, the obligation to vaccinate only wants to impose the protection of the vaccine on the unvaccinated, so that the health system is protected from being overloaded. It is not about their personal risk decision, but about the danger to the community. The autonomy of those opposed to vaccination on health issues is only being touched because it is about protecting everyone – people with and without vaccination, people with Covid, but also patients with other ailments who are endangered by overcrowded clinics. “That’s why we need clear information from the legislature about how great the risk of overloading is,” Rixen said recently at an event at the Karlsruhe Justice Press Conference. In any case, based on the current development of Omikron, the overload scenario is no longer as evident as it seemed to be a few weeks ago.
When it comes to the legal proportionality of laws, there is a magic word. It’s called “appreciation”. The government and parliament can first assess whether, for example, the vaccines are effective enough to reduce the burden on hospitals. The hurdle is not that high, it is enough if vaccination is at least somewhat helpful. The political actors also have – keyword vaccination or vaccination campaign – a certain amount of freedom in the choice of means. And also in the question of whether corona measures are “reasonable” for people, the constitutional court has recently set the limits wide. “But all of this does not mean that the legislature is allowed to adopt compulsory vaccinations in the dark,” Rixen points out.
The effects would have to be well-founded
The professor therefore throws another legal word into the debate, the “burden of explanation”. Anyone who introduces an obligation in such a sensitive area must present its effects as well-founded and precise as possible, if necessary with the help of the expert council. “If that doesn’t happen, we’re kind of flying blind.” Of course, no one can predict exactly what will happen in the fall. “So we need epidemiological projections of what’s likely to happen.” In the decision on the federal emergency brake, the Federal Constitutional Court obliged the legislature to collect information in good time.
There are of course two ways in which politicians could avoid uncertain long-term forecasts. Either, one now agrees politically on a certain model of compulsory vaccination, but only formulates the actual law in the summer, when autumn is in sight. Or you create a framework law that regulates the basic points, but creates an ordinance for the details. This would create flexibility for quick adjustments, the Ministry of Health issues regulations – that can happen quickly. Rixen suggests including the Health Committee in such a procedure, then Parliament would be on board.
In addition, many details have to be regulated, which can also constitutionally decide on the weal or woe of the obligation to vaccinate. Among them the most difficult of all questions: How can it be enforced at all? With samples and fines? Is that enough to – see above – achieve the goal? And what are the consequences for those who refuse to vaccinate? The traffic light coalition shyly avoided the word “termination” in the facility-related vaccination requirement. No wages for the unvaccinated, it says, but then: “Further employment law consequences can be considered in individual cases.” Clarity looks different.
With almost 250,000 confirmed new infections every day, the details also include the following question: Are all those who have recovered undetected also subject to compulsory vaccination? Or can they test themselves free with an antibody test? Does immunization through infection go as far as through vaccination? In view of the presumably high number of unreported cases infected, this could be relevant for millions of people. And when Omikron and his buddies have rushed through the people by the autumn and immunized millions, the question may arise again: Is vaccination actually still necessary?