Expert opinion: Compulsory vaccination is in accordance with the constitution

Dhe plea by Winfried Kretschmann (Greens) and Markus Söder (CSU) to introduce a general vaccination requirement in Germany sparked a national political discussion within a very short time. The future Chancellor Olaf Scholz (SPD) initially announced a discussion, after which he needed another week to finally speak out in favor of a general vaccination requirement in view of the dramatic course of the fourth corona wave. Kretschmann and Söder argue, roughly summarized, that individual freedoms can ultimately only be regained through compulsory vaccination and a higher vaccination quota.

The minister-presidents initially did not provide any more precise information about the specific design of a general compulsory vaccination and the question of how it should be standardized in accordance with the constitution. Now there is an expert opinion from the law firm Oppenländer, which was commissioned by the Stuttgart State Ministry. The result available to the FAZ reads: “A general compulsory vaccination can be introduced under constitutional law. The federal government has the legislative competence for this. No mandatory vaccination may be introduced and there must be exceptions to the mandatory vaccination. “

Law must be evaluated

The lawmaker pursues “a bundle of legitimate purposes” with a mandatory vaccination, so it says in the report. He complied with the state’s duty to protect the life and limb of citizens derived from the basic rights, ensure the functioning of health care and in future, with a mandatory vaccination, promise the “better realization of civil liberties”. The goal of compulsory vaccination is not to achieve herd immunity, but to get closer to basic immunization of the population. So far, health education about the dangers of the Sars Cov2 virus and material incentives to vaccinate have not led to sufficient basic immunization. A restricted vaccination requirement for certain population groups is less effective. In addition, other measures restricting contact, such as lockdowns, are associated with massive restrictions on freedom for the majority of the population.

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The law, write the experts, must be proportionate. In view of the changing pandemic situation, it must be possible to continuously evaluate and adapt it. In any case, there must be exceptions: children and young people between the ages of 12 and 18 should be “temporarily” exempted from the compulsory vaccination. To justify this, the experts state that compulsory vaccination for young people is not proportionate because young people are also exempt from testing requirements. In addition, the basic right to parental care for this population group requires greater government restraint. For those who have recovered and for people for whom no vaccine has been approved, as well as in exceptional medical cases, an exemption from the obligation to vaccinate is possible.

Fines of up to 2500 euros

The obligation to vaccinate must be regulated in a federal law, and it is not subject to approval in the Federal Council, it says in the report. A violation of the vaccination requirement could be punished with fines of up to 2500 euros. In addition, access and verification regulations for unvaccinated people could be laid down in the law. Because there is currently no national vaccination register, the federal states can only check the compulsory vaccination on a random basis. However, it is possible to transfer control by law to federal authorities. It is important to regulate the scope of the permitted data processing.

Above all, the FDP had rejected a general vaccination requirement at the beginning of the debate. The deputy chairman of the FDP parliamentary group Michael Theurer had initially warned against excessive “state violence”. “We don’t want that, we don’t think it’s compatible with the Basic Law,” Theurer had said. The FDP federal chairman and finance minister-designate Christian Lindner had also described a general vaccination requirement as “not proportionate” because a single vaccination does not protect against a corona infection for life. On whose expertise the constitutional concerns of the FDP were based, remained unclear. Most of the well-known constitutional lawyers expressed no concerns about a general compulsory vaccination. The constitutional lawyer Stephan Rixen from Bayreuth, who is also a member of the Ethics Council, made a critical assessment: The right to physical integrity is not a “super fundamental right”. The question is not what appears to be more important in a diffuse accounting of fundamental rights, but whether it is a proportionate restriction of physical integrity.

A look at the decisions of the Federal Court of Justice and the Federal Constitutional Court from the 1950s shows a different tendency in jurisprudence. Even then, writes the historian Malte Thießen in his History of Vaccination, the compulsory vaccination was discussed in the republic as a “state-bearing problem”. The BGH came to the following assessment in 1952: “The compulsory vaccination orders a generally insignificant preventive medical intervention in the physical integrity of the individual in order to ward off the danger of serious smallpox diseases tending to epidemic occurrence.” The Federal Constitutional Court affirmed in 1953 the constitutionality and proportionality of the compulsory vaccination.

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