Compulsory vaccination: when, if not now?

“Rather, it is the prerequisite for us to regain our freedom,” wrote Markus Söder (CSU) and Winfried Kretschmann (Greens) in a newspaper article. It is not the compulsory vaccination that will divide society, but the renunciation of it.

A long overdue dispute about a general, i.e. the entire population, mandatory vaccination is now gaining momentum. The facts speak for themselves: Vaccinations do not offer 100% protection against infection or transmission.

Vaccination as the only effective protection

But they not only largely protect the vaccinated person from infection and serious illness, they also significantly reduce the likelihood of the virus being transmitted to contact persons. In addition, if there are any infections, the symptoms are usually less pronounced.

A vaccination is therefore, as things stand, the only way that protects against serious illness or even death as a result of a corona infection. There is no scientific evidence for the apparently widespread diffuse fears of long-term damage from vaccination – but there are numerous cases of “Long Covid”.

Data from the federal state of Saxony, which is currently particularly badly affected by the virus, shows that the dynamically increasing incidence values ​​are solely a consequence of the exponentially growing number of infections in unvaccinated people, while at the same time the number of infected people is declining.

If the population were fully vaccinated, there would be no worrying situation – unlike at present. Major restrictions on everyday social and economic life would not be necessary. In short: if a compulsory vaccination had been issued and enforced last summer, we would now be in a much less precarious position and would not be heading for the next more or less violent lockdown.

According to estimates by the Rheinisch-Westfälisches Institut für Wirtschaftsforschung (RWI), a complete lockdown would cause macroeconomic damage of 52 billion euros – around 1.5 percent of the gross domestic product!

Now, a state coercion is always an admission that there are people in a society who do not want to admit what the majority thinks is good and right – and who harm the general public with their behavior. That is why the consumption of hard drugs, for example, is made a criminal offense, and every car owner is obliged to ensure the road safety of his vehicle and to have it checked regularly.

In addition, doctors are obliged to report certain communicable infectious diseases to state authorities that the legislature has given the right to enforce quarantine measures in clearly defined cases – and not just since the corona outbreak.

A general vaccination light would by no means be a novelty in West German history. Smallpox vaccination was compulsory until 1975. In addition, in some federal states there was at times an obligation to vaccinate against scarlet fever. In addition, compulsory measles vaccination for children and staff in day-care centers and schools was established in 2019.

Infection Protection Act as the basis

The legal basis is the Infection Protection Act, which grants the Federal Ministry of Health the right to order protective vaccinations by ordinance with the consent of the Federal Council if a communicable disease with clinically severe forms occurs and its epidemic spread is to be expected.

In the event that the federal government does not make use of this right, individual provincial governments can single-handedly issue corresponding statutory ordinances for their federal state.

It is true that such a regulation would not be legally compliant a priori. Rather, it would have to correspond to the constitutional framework, i.e. in particular be proportionate.

This principle of proportionality is the legal mechanism for resolving the tension between the sovereign state and the citizens subject to its measures. Anyone who, when applied to the current crisis situation, sees only an “archaic” legal relationship between the state and the citizen, based on the idea of ​​the authoritarian state, ignores the upstream fundamental rights review program.

Without a doubt, those obliged to vaccinate are impaired in their fundamental right to physical integrity. After all, it is an intimate intervention in your own body. But this basic right may also be restricted.

State obligation

Because the Basic Law not only provides for basic rights as a right to defend against state interference, but also obliges the state to protect citizens from impairment of physical integrity by others.

Part of this constitutionally required state duty is to maintain the functionality of the health system, and above all to ensure hospital care.
Regardless of legal questions, it should be noted that a vaccination is a “merit good”, for which the individual demand falls short of the socially desired extent. Typically, the state first tries to set incentives to increase the demand for such goods.

If this does not succeed, he will resort to the obligation as a last resort, such as compulsory seat belts for cars or compulsory helmets for motorcyclists and compulsory schooling for all children – and these obligations are now accepted without hesitation.

In the specific case of vaccination, the number of free individual vaccination decisions regularly does not reach the politically desired and medically necessary quota. In view of the dynamic pandemic events, a general compulsory vaccination therefore appears inevitable, as a considerable part of the population refuses to be vaccinated and the required herd immunity cannot therefore be achieved.

A general compulsory vaccination with clearly defined exceptions is therefore the only expedient political option to combat this pandemic. If the still executive Chancellor were to get this off the ground, it would be her last and perhaps even her greatest achievement to Germany.

More: Constitutional lawyer Degenhart: “Consider a general vaccination obligation to be mandatory”