"Everyone should decide for themselves": According to constitutional lawyers, vaccination ban is vulnerable

"Everyone should decide for themselves"
According to constitutional lawyers, vaccination freeze is vulnerable

There is not only approval but also a lot of criticism for the decision of the federal government to suspend vaccination with the drug from Astrazeneca. Constitutional and medical lawyer Lindner considers them legally problematic and vulnerable. Everyone should be informed about risks and decide for themselves.

The constitutional and medical lawyer Josef Franz Lindner considers the decision of the federal government to suspend vaccination with the Astrazeneca vaccine as vulnerable. It is legally problematic to relieve the individual of the decision about the risk of possible complications when administering an approved vaccine, said Lindner. "After being informed, everyone should decide for themselves whether they want to take the risk."

The suspension of the vaccination will lead to deaths due to Covid-19 in people who could not be vaccinated now. The vaccine is approved and actually available, said Lindner, who holds the chair for public law, medical law and legal philosophy at the University of Augsburg. However, the freedom of choice is a theoretical possibility because the vaccine is currently no longer offered in the vaccination centers.

"Problematic" prioritization too

Lindner also clearly considers the prioritization set out in the vaccination ordinance to be legally problematic. "Constitutional law requires major decisions about life and health to be passed by law," he said.

Admittedly, improvements have been made: It is now legally regulated according to which criteria – such as age – can be prioritized. "But that's not enough," said Lindner. "It is not legally clarified how these criteria are to be weighted."

According to Lindner, the chances of success of lawsuits are low

Nevertheless, Lindner is skeptical about the chances of success of lawsuits for early vaccination. These could only be successful in extreme cases, such as recently before the Potsdam Administrative Court. A woman who was seriously ill with cancer and not yet 80 had sued that the doctors had confirmed that the doctors had an exorbitant risk of death in the event of a corona infection.

The court decided that the vaccination ordinance did not allow classification in the first priority group. However, it derived the right to a priority vaccination of women directly from the Basic Law and the state duty of care. "But if, for example, a high school teacher complains about being vaccinated just as early as a primary school teacher, I don't think that is promising," said Lindner. This is not an extreme case. A court cannot independently change the sequence of vaccinations regulated in the regulation.

At most, it could declare the vaccination ordinance illegal, so that it would have to be redesigned. "But it is not imperative that the new regulation fails in the interests of the plaintiff in such a case," said Lindner. The lawyer also considers it difficult to punish those who pretend to be vaccinated, as the federal government is planning. The principle of "no punishment without a law" applies. A criminal offense of "urge to vaccinate" cannot be introduced retrospectively, at most for the future – and a legal regulation is also required for this.

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