German society partially rejects the vaccination for various security concerns. It’s a heated debate whether a vaccination mandate should be introduced in Germany. Let’s highlight the factors that influence the decision making process.
Does the federal republic have the necessary legislative competence to enact a corresponding law? The German ‘Grundgesetz’, its basic law acting similar to a constitution, states that the federal republic can enact measures against infectious diseases that are dangerous for humans. (Art. 74 Abs.1 Nr. 19 GG)
Using this competence the ‘Infektionsschutzgesetz’ (Law for the protection from infections) was enacted on 19.11.2020. This law enables a variety of measures to reduce infectious diseases from spreading. It does however not enable the enactment of a mandatory vaccination against COVID-19. What is inside this mandate is an option for the Ministry of Health to implement mandatory vaccinations for endangered groups of people, but has to run through the Bundesrat (comparable to the upper house of parliament).
As long as this competence is not being used it is within the responsibility of the federal states to issue executive orders.
In case of measles the ‘Bundesverfassungsgericht’ (Federal Constitutional Court) Germany’s highest Court has ruled in favor of a vaccination mandate for all children and personnel of care institutions, because it protects not only the individual but as well others from infection. It is unclear however if a similar ruling would apply to a COVID vaccination mandate.
Foundation for a vaccination mandate
The Grundgesetz protects all citizens from encroachment of the state regarding life or body to guarantee integrity and physical health of every individual. (Art.2 Abs.2 S.1 GG) Any medical treatment therefore requires consent. The protection of an individuals physical health however counts towards vulnerable groups regarding the infection risk from others as well.
An encroachment upon a fundamental right is already given from the injection itself, not only by the vaccine that is being injected, that can potentially have side effects. It is constitutionally possible to encroach upon this right from legal reservation (Art.2 Abs.2 S.3 GG).
The encroachment has to be proportionate. To be proportionate it has to have a legitimate target, needs to be appropriate, necessary and reasonable. The currently available vaccinations do have a legitimate target and are appropriate as they will help reduce the spread of the virus. There is no better alternative and no other measure is equally effective. Even natural herd immunity is not equally effective as it is unclear when and how it could be reached.
The tradeoff is therefore between the protection from a risky and potentially severe infection and the constitutional right for physical integrity.
Additionally the Grundgesetz protects the human dignity prohibiting the state to make any human being an object to governmental policy. (Art.1 Abs. 1 S.1 GG) Taking away their right to decide using a vaccine that has a comparably short scientific research phase would make them an object, ignoring if an intrusion into an individuals physical integrity is favored. Medical considerations are only one Criteria when evaluating the justification for a vaccine mandate.
While the infection is clearly creating externalities it could be considered quite similar to a speeding limit. Driving too fast is deemed a very dangerous externality negatively impacting others. Society through the state therefore prohibits unreasonable driving speeds. Hardly anyone likes speed limits but they have to comply either way.
Economically it is much cheaper to vaccinate compared to the cost of hospitalizations, production downtimes from lock-downs and loss of life.
Yet it is not just a medical or an economic decision but more likely an ethical.
Vaccinations have the power to shift possible damage or even death from one person or group onto another. Even if the probability or severity of consequences is lower overall, a decision against the will of others to shift the possible occurrence of damage seems critical.
Ethical orientation regarding mandatory vaccinations
The ‘Deutscher Ethikrat’ (German ethics counsel), an independent council of experts in Germany ‘informing the public and encouraging discussion in society, preparing opinions and recommendations for political and legislative action for the Federal Government and the German Bundestag’ has released a paper in December of 2021 discussing a mandatory vaccination.
The situation during the pandemic has changed several times resulting in varying projections depending upon available data as well as new emerging variants. Before a discussion the following parameters have been defined as relevant for the evaluation.
- Extend of vaccinations declining protective power over time, as well as the resulting need for renewed booster vaccinations.
- Hospitalization situation
- Infectiousness, pathogenicity and probability of vaccination breakthroughs.
- Probability of new variants
- Projections regarding vaccination rates development; number of vaccinated and unvaccinated
- Distribution of relevant groups in the population
- Regional differences
While the right for self-determination is an ethical principle, so is the physical integrity of others. Behavior of individuals should not harm others. This includes infection of other but as well regular patients in hospitals that suffer from overcrowding in hospitals and overburdening of medical personnel.
Damage prevention includes all damage, including damage of omission. This can be extended into psycho-social conditions, material consequences, access to education and sport, leisure time and cultural activities as well as societal participation in general.
The negative consequences of vaccination are disparately lower than that of infection. Younger groups are limiting their life in solidarity of vulnerable groups and can therefore expect that vulnerable groups protect themselves with available measures.
The sensibility of a vaccination mandate with regards to a further radicalization of some groups are within the responsibility of political actors.
The ethics council evaluated several patterns of arguments from the current discussion that have ethical relevance.
CONTRA vaccination mandate
- Unproportionate intrusion into personal liberties and physical integrity
- Vaccinations are either not proportionate or necessary as not all possible measures before a mandate have been used, such as movement restrictions, test obligations, individualized campaigns to convice more people to get vaccinated, upcoming medication that protects from severe infection consequences.
- Vaccinations are not appropriate or reasonable because they could have side effects that will only show long-term and the fear of those side effects, for example infection of the heart muscle. Vaccinations can be inappropriate if continuous vaccinations are needed on a group rejecting them. Should side effects occur they could further radicalize groups that object to a vaccination. The mandate would be unreasonable if new variants render a vaccination ineffective.
- Stigmatization of groups that cannot get vaccinated that would be discriminated need to be excluded from the mandate, which is complicated.
- Problematic execution. Different levels of coercion would occupy administration for years, provoking populism due to perceived in-consequent management of the situation.
- Negative societal consequences. A vaccination mandate raises concerns on a rising political paternalism that could use the vaccination mandate for mandates in other aspects. It can as well provoke expectations for similar management in other health risk situations and increasing risk averse behavior. It removes the need for solidarity, to get the vaccination from a sense of responsibility towards society.
- Provoking illegal behavior. Initially two-thirds of the German population opposed a mandate. With the introduction of movement limitations use and trade of counterfeit vaccination certification increased. When people object and turn away from the state erosion effects could damage democratic polity.
- Global perspective. National solutions seem ineffective to solve a global situation. Vaccinating willing people in other parts of the world might be more effective than trying to vaccinate unwilling people within well vaccinated areas.
PRO vaccination mandate
- Vaccinations seem appropriate because there is no better solution as of now and complications are mild and rare, based on 8,7 billion vaccinations so far.
- A clear relationship between regional vaccination rate and regional hospitalization situations, as wells vaccination status and need of intensive care. Additionally Long-Covid is a considerable burden for hospitals and patients. High quantities of vaccinations can compensate lower quality of vaccination from new variants. Vaccinations also reduce the probability of new variants.
- Positive impact on societal freedoms. Education, economy and cultural events can be used.
- Fair distribution of burden. The exhaustion and overburdening of the health system needs to be circumvented. A generation of children are cut from development opportunities that are necessary for personality development. Vaccinated people are disproportionately limited as mobility reducing measures and lock-downs hit both groups, vaccinated and unvaccinated, equally. Extended limitations for vaccinated are increasingly unjust and not reasonable.
- Positive consequences. A vaccination mandate could give people a reason or excuse to get vaccinated if they live in a vaccination skeptic environment. A ‘same rules for everyone’ perception can have a positive effect on current polarization. It could be considered politically responsible and illustrating governments capacity to act. With time and increasing vaccination rates, the acceptance of a vaccine mandate has turned from two-thirds against in 2020 to two-thirds for in 2021.
Position of the German ethics council
13 of 20 members approve of an extension of the existing vaccination mandate for care related occupations to a general vaccination mandate for all adults above 18 years of age.
Not only do vaccinations protect vulnerable groups but extended limitations harm the younger generation. Furthermore it reduces long-term damage from Long- and Post-COVID. Vaccinations are also needed to reduce risk of new virus variants.
Lastly continued limitations of society and discussion around the topic can additionally increase polarization as not only people rejecting vaccinations are negatively impacted, but all of society.