Politicians have ruled out a nationwide lockdown – although the incidences are taking on frightening proportions. Epidemiologically this is questionable – but legally justifiable. Politicians are thus in a bind.
If the cat turns too quickly, it will eventually bite its own tail. This is probably the best way to describe the current way of dealing with the pandemic. The RKI has been reporting high levels of new infections every day for a week. But instead of pulling the emergency brake again in the form of a lockdown, as several epidemiologists recently advised, politicians are content with letting the legal basis for such decisions expire at the end of the month.
What is meant is Paragraph 29a No. 13, 14 of the Infection Protection Act, in which the “epidemic emergency of national scope” is anchored. It allows the Minister of Health to impose protective measures in the event of a social threat without the consent of Parliament – for example in the form of a lockdown as is currently being implemented in the Netherlands and Austria. But the epidemic situation that allows such a measure has been controversial in Germany for months because it shifts decision-making authority from the parliaments to the government.
“After a year and a half of the pandemic, it is therefore necessary to end this situation,” says Stefan Huster, holder of the chair for public law, social and health law and legal philosophy at the Ruhr University in Bochum. The situation is different from the year before, says the expert, referring to the deaths and incidences from last November. At that time, the RKI recorded 215 deaths within one day in its management report, the incidence was 149 (As of November 12, 2020). Today it rose to 263, the last time the RKI had reported 193 deaths within one day (As of November 12, 2021). Although the death rate is currently lower, there was no vaccination in 2020 that would reduce the risk of severe disease and death. 67 percent of Germans are now fully vaccinated.
Pandemic of the unvaccinated justifies the lockdown
In order to stop the upward trend in incidences, a comprehensive lockdown would still be possible according to the current legal situation. That will change from November 25th. In legal terms, this means that all measures of the Infection Protection Act may no longer be imposed, say the legal scholars. This includes both the mask requirement and the closure of public facilities. At the same time have the traffic light parties in their new bill Maintain low-threshold measures, including compulsory 3G and 2G in certain areas and compulsory testing for unvaccinated and non-recovered workers. However, the law does not prescribe these measures, but only contains the legal bases for the federal states, according to the legal expert.
“You can of course ask yourself whether the instruments with which the end of the epidemic situation is to be compensated for are sufficient,” says Huster. However, if it is clear that unvaccinated people contribute significantly to the infection process, a nationwide lockdown is no longer legally acceptable for everyone, including those who have been vaccinated and those who have recovered.
The latest assessment by the epidemiologist Christian Drosten is contrary to this. On Thursday, in the NDR podcast “Coronavirus Update”, he revoked the widespread assumption that it was a pandemic for the unvaccinated. His thesis: On the one hand, the vaccination protection already wears off two to three months after the last prick. At the same time, the current vaccines were still being developed at a time when the wild-type coronavirus was still widespread. It has now been replaced by the delta variant, against which the vaccine can only withstand limited use. Accordingly, vaccinated people also contribute to the infection process, albeit to a lesser extent.
Lockdown problematic for unvaccinated people
From the political side, these statements are apparently not seen as an argument in favor of the lockdown, which is necessary from an epidemiological point of view. Federal Health Minister Jens Spahn and the members of the future traffic light coalition had increasingly spoken out against further curfews. But: “Where there is no longer any vaccination protection, there has to be protection through a lockdown,” says Christoph Gusy, legal scholar at Bielefeld University. Only threatening the unvaccinated with a lockdown has a very specific reason. “You want people to go vaccinating.” Due to the possibly increased willingness to vaccinate, the lockdown will automatically become superfluous.
Forcing unvaccinated people back into their own four walls, while vaccinated and convalescent people indulge in public life, the legal scholar considers only “in the most extreme, extreme emergency” to be justifiable. The separation of citizens according to their vaccination status and the related necessary controls would be problematic. “Probably an impossible undertaking, given the large numbers. What cannot be controlled or enforced should not be ordered,” Gusy affirmed.
The pandemic is not over yet
At the moment, however, it is not just about the legal issue that is being disputed. Rather, the question is what signals the end of the epidemic situation. If the change in the law is seen as the end of the pandemic, that is a bad signal in the current situation. “But that would only be a symbol, the signal has no legal meaning,” says Gusy.
In view of the increasing incidences, legal expert Huster also considers the time for the end of the epidemic situation to be unfavorable. However, drastic measures such as contact and exit restrictions as well as bans on public festivals “could quickly become permissible again,” says Gusy. It is important that regionally different measures can be introduced. “Where the infection rates are high, the restrictions must also be severe. Everything does not have to be the same everywhere if the conditions are not the same.”
Political promises ignore reality
Legally no longer acceptable, but epidemiologically sensible: Politicians are in a lockdown dilemma. For months she has been promoting the vaccination with the promise that with every prick you get a little closer to everyday life before the coronavirus. But these promises are noticeably falling apart. It started with herd immunity, which experts believe will not be achieved. At least not in the way citizens and politicians had long imagined. Two weeks ago it was a British study that shook the image of the apparently invulnerable vaccinees. And now the chief epidemiologist at the Berlin Charité has come to the conclusion that there is no pandemic for the unvaccinated.
The traffic light parties in particular are likely to find themselves in trouble because they recently submitted a specific date for the so-called Freedom Day and thus set the end of the pandemic. To cancel Christmas markets and carnival events now, when you thought you were almost at the end of the pandemic, could call into question the political decision-making ability.
A lockdown currently seems to be the most sensible of all measures. Because with 2G, as epidemiologists have also often emphasized recently, the fourth wave will not be able to be stopped in the short term. The legal questionability of certain measures does not change that.