Constitutional Admissibility of the Introduction of a Vaccine Mandate Against SARS-CoV-2
PhD student: Tim Wiest, Mag. iur.
Since the spring of 2020, the ongoing SARS-CoV-2 pandemic has burdened almost all social and economic life. In order to contain the pandemic, almost all fundamental rights have been interfered with, in particular through company closures, as well as curfews and contact restrictions. Despite the successful development and approval of various vaccines against the SARS-CoV-2 virus, the so-called “herd immunity” has not yet been achieved in Germany.
Therefore, the dissertation addresses whether a vaccine mandate- or at least a partial regulation for certain occupational or age groups - against SARS-CoV-2 is compatible with the German constitution in order to prevent further lockdowns and to maintain the functionality of the health care system.
In this context, it must be taken into account that a vaccine mandate has already existed in the past with the obligation to vaccinate against smallpox. The vaccine mandate against smallpox was considered compatible with the German constitution by the Federal Administrative Court in 1959. At the same time, since 2020 there has been an obligation to vaccinate parts of the population against measles (Section 20 (8) et seq. of the IfSG). The paper examines whether the considerations regarding the above-mentioned measures can be transferred to the introduction of a (partial) vaccine mandate against SARS-CoV-2. It also reviews whether a vaccine mandate against SARS-CoV-2 is compatible with the constitution with reference to the principle of proportionality.
The starting point are the fundamental rights in their dimension as state duties to protect. The decisive factor is whether the considerations of protective law (protection of vulnerable persons, prevention of further lockdowns, and maintenance of the functioning of the health care system and thus averting possible triage) prevail over the individual's right to physical integrity (Article 2 (2) sentence 1 of the Basic Law) and the right to self-determination (Article 2 (1) in conjunction with Article 1 (1) of the Basic Law).