The federal government plans to make vaccination compulsory. In a first orientation debate, Parliament exchanges views on the pros and cons. the star therefore spoke to a lawyer about the legal pitfalls.
Volker Boehme-Neßler is a professor at the University of Oldenburg and deals with constitutional law, among other things. In conversation with the star he explains when the obligation to vaccinate would be proportionate and what the difference is between an obligation and a compulsion. He also reveals which means could increase the vaccination rate at least as effectively.
Mr. Boehme-Neßler, ZDF quoted you as saying that compulsory vaccination is unconstitutional as long as there are “ways of communication”. What did you mean by that?
Compulsory vaccination is an encroachment on fundamental rights. However, the constitution only allows this in certain exceptional cases; it must be proportionate. This means that there must be no other means that is milder but does not restrict fundamental rights so drastically. What I was getting at is communication. There are countless studies on risk communication that show that and how people can and must be addressed in order to get them to behave in a certain way.
As long as we have not exhausted the means of communication, we must not introduce more drastic measures, such as compulsory vaccination. I also ask myself: why didn’t the former chancellor get vaccinated publicly? In front of the camera, why didn’t she roll up her sleeves and call on people to join her? That would have had an uncanny communicative effect.
What would that mean in this specific case?
In Spain, the vaccination rate is 90 percent, but compulsory vaccination was never an issue. In Germany, Bremen is the best example of this. You talked to the people, enlightened them. Communicating means going specifically to people who are afraid or unsure. You can do that with a vaccination bus that goes to the problem areas. Interpreters who are familiar with the culture of a community and speak the language are also helpful. Another possibility would be low-threshold vaccination offers, for example in the supermarket. You have to get the vaccination to the people. This all happens far too seldom.
At the beginning of the conversation, you said that the obligation to vaccinate must be proportionate. When would that be the case?
From a legal point of view, a measure is always proportionate if three points are met. Is the measure, in this case compulsory vaccination, suitable for achieving the goal? The question now is whether vaccination against the current virus variant will help. If this is not the case, compulsory vaccination would be pointless.
That wasn’t a problem before Omikron, but now we see in Bremen, among other places, that the incidence is through the roof despite the high vaccination rate. This is an indication that the currently available vaccines do not provide sufficient protection against the new virus variant. In this case, compulsory vaccination is not a suitable measure.
And the other two points?
The second point is necessity. Here one has to ask oneself whether there are other effective means with which the vaccination rate can be increased while at the same time protecting fundamental rights. In my view, communication would be the milder means. The third point is appropriateness. Is it worth the potential impact of requiring citizens to be vaccinated?
What effects do you mean?
Compulsory vaccination could damage trust in political institutions and possibly endanger democracy. As the Cosmo study shows, after two years trust in state institutions is lower than before the pandemic. This also has to do with how the pandemic policy works and how chaotic communication was. A recent study says that only two to three percent of the unvaccinated belong to the very tough opponents of vaccination. We’ll never be able to convince them. But everyone else could be reached with good communication.
Politicians argue that we regain freedom with compulsory vaccination. They say that by doing this we lose freedoms. Why?
On the one hand, it is about the fundamental right to physical integrity. The state would intervene in the body with compulsory vaccination. I don’t mean the spade, but the vaccine that is injected into the body and stimulates the immune system. The constitution states: “Human dignity is inviolable.” This means that the state must never objectify people. The vaccination decision is subject to numerous uncertainties. Nobody can say exactly how well the vaccines against omicron work, which variants are still to come and which vaccine we will then need.
Getting vaccinated is a highly personal and intimate decision, and it is part of human dignity to make a private decision. If the state prescribes the decision in this uncertain and confusing situation to the people, then it makes them an object. Freedom of belief is also enshrined in the Basic Law. So everyone has the right to refuse medical treatment for religious reasons. This freedom is also restricted.
What is the difference to the measles vaccination? After all, it is mandatory.
Which can also be viewed critically. It has to be said that we are talking about an indirect obligation to vaccinate. Parents cannot send their children to daycare if they are not vaccinated against measles. Otherwise, the fundamental rights are the same. Parents also have the right to bring up children, which is an important fundamental right. This also includes health care. The state takes this out of the hands of the parents when children are obliged to be vaccinated. This does not mean that fundamental rights cannot be restricted. But proportionality must always be maintained. And I have doubts about that. And before you get the wrong impression, I’m personally a big believer in vaccination. But the point here is that the state decides whether or not I get vaccinated.
Let’s come back to proportionality. A corona vaccination requirement before Omikron would have been unproblematic?
Not really. You should have communicated differently beforehand. But in the summer, politics paused, campaigned – and forgot about the vaccination rate. Even back then, the vaccination rate could have been increased through communication, and that is why, in my view, the obligation would have been a disproportionate intervention even then.
To put it purely hypothetically: If we had exhausted the means of “communication” and still not achieved the goal of a high vaccination rate, would a seasonal vaccination requirement be conceivable? So far, the virus has spread less in summer than in winter.
The constitution does not rule out mandatory vaccination forever and ever. But it must be appropriate and necessary. If we could assume that vaccination would end the pandemic, then the obligation would be legally enforceable. But whether we can introduce them depends on the situation. Which vaccines are available, which variant is circulating, what about the willingness to vaccinate? There are still many unknowns. Let’s assume next winter comes an even worse variant than Omicron, the health care system would be overloaded, the vaccination rate would be low and there would be an effective vaccine. Then a vaccination would be proportionate.
Behind this is also the question of what we want to achieve with the vaccination. Jens Spahn said we vaccinate ourselves from the pandemic. Then it became known that the vaccination only reduces the risk of serious illnesses and death, but that those who have been vaccinated are still contagious. And now you just want to prevent an overload of the health system. With what goal would one successfully defend the vaccination requirement in court?
Saying we need compulsory vaccination to protect everyone and get out of the pandemic would be a legitimate goal. But to say that we don’t want individuals to get really sick would not be a valid goal. That brings us back to human dignity and physical integrity. This also means that people can decide whether they want to live a healthy life or not. You can chain smoke, even though everyone knows it’s unhealthy. Anyone who wants to can refuse the vaccination, although it may be unhealthy.
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And the protection of the health system?
That would in turn be legitimate, because the constitution gives the state a duty to protect the life and health of its citizens. He is obliged to ensure a functioning health system. We are currently seeing that the number of infections is increasing, but the hospital occupancy in the intensive care units is decreasing. If, based on the data, the constitutional court finds that Omikron does not endanger the health system, then compulsory vaccination would not be necessary.
What is the difference between compulsory vaccination and mandatory vaccination?
A duty requires citizens to behave in a certain way that is enshrined in the law. So the law requires citizens to be vaccinated. This is where legal duty differs from moral duties, for example. The legal obligation can be enforced with state power. Of course, compulsory vaccination can be enforced.
But what about 2G? For some, this feels a lot like compulsion.
In my view, this is an indirect obligation to vaccinate. 2G is shaping the environment and putting pressure on me to get vaccinated. So far, no one can imagine compulsory vaccination as a last resort. That would mean that you would be picked up by the police and taken to the nearest vaccination station. But if someone claims that compulsory vaccination is not associated with compulsory vaccination, then that is window dressing. Legally, legal obligations can (almost) always be implemented with coercion.
What about fines?
Enforcement begins with them. Compulsion follows the increase principle. We start with a mild remedy and then become more and more severe. The fine is the first step, if that doesn’t help, more serious measures follow.
The debate about compulsory vaccination also involves the question of how it should be controlled. But a vaccination register has so far failed due to data protection. Are there other solutions?
From a data protection point of view, a vaccination register would indeed be problematic. Then the administration would have a precise overview of who is vaccinated and how. That would be a massive encroachment on the fundamental right to informal self-determination. We are stuck in a dilemma here: On the one hand, the vaccination register would be such a severe encroachment on basic data protection rights that it would not be possible to implement it. On the other hand, the obligation to vaccinate can hardly be checked without the register. One would then have to resort to case-by-case checks. Similar to road traffic, where the police randomly check the car documents.