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Fundamental rights are not vaccination privileges

Deutsche Welle Strack Christoph Portrait
Christoph Strack
July 27, 2021

Ever since Germany launched its vaccination campaign, a debate has raged about rights and restrictions. Christoph Strack asks whether the state can impose curbs on those with full protection where it’s unnecessary.

Großbritannien London | Anti-Lockdown und Anti-Impf Protest
Protests against vaccine requirements are picking up across several countries in EuropeImage: Henry Nicholls/REUTERS

The overriding question is whether the state can discriminate against the unvaccinated. The dispute is an integral part of the anti-vaccination movement and it's getting fiercer.

The answer is clear: The state may not restrict basic rights of the fully vaccinated any more than necessary. It's a matter of basic rights, not privileges.

And, as of the moment when everyone has had access to a vaccination shot, the state can impose measures on those who refuse to be vaccinated in line with the requirements of society. In doing so, the state must grant exceptions to minors who cannot (yet) be vaccinated (and, while it's at it, fulfill its duties by installing air filters in school buildings — an area where the German states, who are responsible for school policy, have failed collectively). The same applies to adults for whom vaccination protection is not possible for medical reasons.

The international comparison

This is becoming a challenge for many other countries. France and Italy are working on guidelines for vaccinated and non-vaccinated people; in the United States, immunologist Anthony Fauci is already talking about an imminent new coronavirus wave with up to 4,000 deaths a day and is warning of a "pandemic of the unvaccinated" — because too few people in the country are getting their shots.

It's about freedoms in the sense of fundamental rights — and about necessary precautions. Just look at the growing number of countries that are discussing or have already made vaccination compulsory for medical personnel: Italy and France, England, Hungary and Greece, to mention a few. The fact that the number of nurses in Germany who have not yet been vaccinated is too high in regions where right-wing populists and conspiracy theorists are particularly strong is indicative of the motivations that drive those who oppose vaccination.

The requirements for medical staff show how convoluted the situation is. By nature, health-care workers must get close to those they're caring for, especially those at risk. This is precisely why vaccination was started at an early stage, and rightly so, for employees of clinics and homes.

The legal dilemma

There are already suggestions as to how the distinction between vaccinated and unvaccinated could work in higher education. The vaccinated could attend so-called hybrid lectures on-site while the unvaccinated could follow them via Zoom. Both groups would then be able to follow the lecture. Equal treatment in this area is not mandatory. So why not?

It's clear that the state cannot prohibit anyone from participating in basic aspects of social life. But in the pandemic, it was able to impose obligations on everyone within necessary bounds such as that to wear masks when shopping or on public transport. Those requirements can then apply to everyone.

The road to compulsory vaccination would, however, be a long and winding one in legal terms, and an immense challenge. The private sector, however, doesn't have those shackles: Every concert organizer, every restaurant, every hotel, every amusement park could initially rely on vaccinations and the vaccination pass — provided they do not have a monopoly claim. It will be up to the courts to clarify the matter. But no one can force a restaurant owner to cater for unvaccinated customers indoors.

An ethical question?

Those who denounce vaccination as arbitrary seem to forget and ignore the seriousness of the pandemic: the overburdened hospitals, the collapse of health-care structures, the detrimental effects on the younger generation, which some are already calling the "lost generation," and the challenging social and economic upheavals.

What I have described above makes the case for ethical mandatory vaccination. Politicians occasionally talk too much and too hastily to distinguish between this ethical requirement and a legal requirement to vaccinate, or to allow others to make that distinction.

As it stands, if vaccinated people are granted more freedoms to a certain extent in their social activities, it will be possible to justify this on ethical grounds.

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