Mandatory Vaccination is not an Assault to Freedom: A Plea for Mandatory Covid-19 Vaccination in Germany

—Felipe Oliveira de Sousa, Center for Law, Behaviour and Cognition (CLBC), Ruhr-Universität Bochum

The German Bundestag has recently opened discussions about the adoption of a general mandatory vaccination requirement for Covid-19 (Allgemeine Impfpflicht) in Germany. Whereas some voices argue that it would be disproportionate and lead to a strong interference in the fundamental rights of the unvaccinated, other voices hold an opposing position. In what follows, I offer some reasons for why such requirement may be constitutionally justified, and raise questions in relation to its practical implementation.

Preliminary case

Even though many people presume that vaccination requirements are unethical or violate human rights, the right to health and its correlated duties provide a prima facie justification for their imposition. The fundamental right to life and to health protection are recognised both in the German Basic Law and in a number of international treaties to which Germany is a signatory part (such as ECHR). Though there are good reasons to be concerned with the social division that the adoption of a vaccination requirement for COVID-19 would cause in the German population, such a requirement does not constitute in principle a violation to any fundamental right. It is, for instance, a generally suitable means to promote the goal of health protection. The various measures that have been used so far – free vaccination campaigns, negative incentives to the unvaccinated (e.g. the 2G-rule) – have not been sufficient to achieve a higher vaccination rate. Because such a requirement would interfere in the fundamental rights of the unvaccinated, a justification must be provided for its adoption and for why it can be considered proportionate.

A Plaidoyer for Mandatory Vaccination: supporting reasons

On the safety and efficacy of vaccines

Vaccination is still the safest and most effective way to build a protection against Covid-19. Vaccinated people are less likely to spread the virus than the unvaccinated. They also consistently display milder symptoms in cases of infection and lower hospitalization rates (especially after booster vaccines). Even though they are not very effective in preventing symptomatic infections of omicron, booster vaccines are extremely effective for preventing severe disease, hospitalization and deaths. A recent study suggests that they can even trigger superior neutralizing effects to those that can be obtained through natural immunity.

These results might not fit our best expectations, but they are far from negligible.  This is even more so if one notes that for the most part, the side effects of vaccination are minimal. The likelihood of long-term side effects is also extremely low (possibly lower than the risks of long-term effects due to an infection by Covid).

Overcoming the burden on the health system

A vaccination requirement may also help to avoid overburdening the health system with covid patients. Though the amount of covid intensive care patients has decreased in Germany, hospitalization rates show a strong increasing tendency. The relatively low rates of booster vaccination and of general vaccination are among the contributing factors. It is likely that the current burden on the health system could have been avoided if more people had already been vaccinated and boosted.

More freedom to everyone

A mandatory vaccination requirement would also enable the relaxation of social distancing measures. The widespread circulation of the virus and the burden it poses to the health system are two core reasons for their adoption. If effectively implemented, such requirement could reduce that burden and cancel out one important justification for restriction measures. This would be beneficial to everyone, especially to the unvaccinated, who currently have to cope with strong restrictions on freedom.

Preparing for the future

A vaccination requirement is supposed to tackle not the current omicron crisis, but a crisis in the future (possibly autumn). In order to prepare now, law-makers should keep in mind the possibility that escape mutations and recombined variants might pop up. The belief that, due to its less aggressive nature, omicron may signify the end of the pandemic – or that future variants will be milder than omicron – cannot be affirmed with any certainty. The WHO has recently declared that the next variant is likely to be even more transmissible than omicron, though its severity is unclear. A general vaccination requirement seems to be the safest way now to deal with an upcoming crisis in the near future.

Mandatory vaccination is constitutionally permissible

These are reasons to believe that, on the overall balance, a mandatory vaccination requirement for Covid-19 may be constitutionally permissible. Even though the protection that vaccination currently brings to the health of individuals is gradual and limited, it is relevant. It can also be achieved with only a moderate or low interference on the physical integrity of the affected subjects and within a good margin of safety.

Practical difficulties

Much of the discussion is expected to happen not on whether the requirement is justified, but on its specific configuration – e.g. its scope (should it be limited to certain age-groups or professions, or include all adults?); the type of penalty to be imposed in case of non-compliance (e.g. a fine, limitation of access to some services, or stronger measures?); enforcement mechanisms (e.g. should a vaccination registry be created?) and so on.

Regardless of the options chosen, practical difficulties are likely to ensue. Take a fine, one of the most obvious candidates for a penalty. If it is not sufficiently high, it may not lead resistant people to get vaccinated. Also, what should happen if one does not pay it? Should one get a suspension of work-permit or have it discounted directly from the social pension system? Should a fine be monthly applied until a proof of vaccination is obtained? Concerns have also been raised about a discriminatory effect that the possibility of free-buying might generate.

Data protection is likely to raise further difficulties. The creation of a vaccination registry, in the lines of the one that was recently adopted e.g. in Austria, could be an important device to promote an effective implementation of the requirement. Whereas for some voices such a registry could be made compatible with data protection standards, for other voices – of a more liberal lining –, its creation would represent a strong and unjustified interference from the state in the privacy of individuals.

These are all difficult questions that require a careful balancing of the interests involved. Any decision here will depend on the success in the Bundestag, which is the institution in charge of making such balancing judgments. What remains beyond doubt is that, without a clear and effective plan, the requirement could in practice lead to no compulsory intervention at all.

Next steps

It remains to be seen whether such requirement will be actually adopted, and, if it is adopted, whether it will help to raise the vaccination rates in Germany. The next weeks will be decisive. There is currently significant resistance from some individual states.

The German Federal Constitutional Court has just rejected an injunction request seeking a provisional suspension of the recently imposed obligation on health care workers to provide proof of vaccination or recovery from COVID-19. Though the question about its constitutionality is still under review, the FCC has affirmed that there are no major constitutional concerns about this obligation and that it should go into force as planned.

The FCC argues, for instance, that if this obligation were suspended, the extent and severity of the disadvantages faced by the complainants – most of whom are healthcare workers who are either unvaccinated or refuse to receive further vaccinations – would not outweigh the disadvantages that might arise for vulnerable persons, who would be at a considerably higher risk of contracting COVID-19 and becoming severely ill or even dying. The FCC also refers to the various findings confirming the protection that vaccination confers against infection and the rarity of serious side effects. It also recalls the high transmissibility of the virus and the high number of cases, which increase not only the probability of contracting the virus, but also the risk of infecting vulnerable persons. As the FCC notes, ‘interrupting transmission chains as early as possible remains especially important in respect of vulnerable groups’, and vaccination can contribute to a relevant degree for the achievement of this aim.

Though the requirement that is under discussion in this case is limited in scope (it only applies to healthcare workers), this decision represents an important point of reference for future decisions, also in relation to the constitutionality of a broader vaccination requirement. Given the FCC’s reasoning, there is a good chance that, if such a requirement passes in the Bundestag, the FCC may consider it to be constitutionally justified.

Mandatory vaccination is not an assault to freedom

If – after a process of open, transparent and participatory deliberation, taking the most up-to-date scientific evidence into account – such a requirement gets approved in the Bundestag, it can hardly be considered an assault to freedom.

Whereas in a democracy diverging voices must be heard, they should not stay on the way of the protection of fundamental rights, including health protection. In a healthy democratic political community, there are epistemic duties that citizens and public authorities must fulfil on how they form and defend their opinions, how they express them to others and engage with diverging ones. We are not authorized to simply ignore or downplay scientific evidence, or insist – as some political leaders and radical groups in society do – that the Corona pandemic is a farce or a project of big corporations and of certain countries to exploit citizens of the world and make money on them, putting a price on their freedom; among other things. However valuable democratic freedoms are, there is a limit on what political communities have to put up with for the sake of freedom and protecting the collective good.

Suggested citation: Felipe Oliveira de Sousa, Mandatory Vaccination is not an Assault to Freedom: A Plea for Mandatory Covid-19 Vaccination in Germany, Int’l J. Const. L. Blog, Feb. 27, 2022, at: http://www.iconnectblog.com/2022/02/mandatory-vaccination-is-not-an-assault-to-freedom-a-plea-for-mandatory-covid-19-vaccination-in-germany/