Covid restrictions across the world raise the question of how far a liberal state can go in imposing coercive measures to protect life and health. Oliver Gerstenberg explores the answers the German constitutional court has given in its recent rulings on Germany’s Covid-19 measures. He also reflects on whether a vaccine mandate is compatible with the bedrock of legitimacy in liberal democracies.
How does state coercion affect us in Covid times?
The pandemic has thrown into sharp relief the question of liberal coercion. In the context of our heavily judicialized legal and political orders, that question entails the further question of the role of courts in a democracy. Are—and, if so, to what extent—coercive measures to protect life and health, such as contact restrictions, curfews, school closures, and others, which the liberal state imposes invoking social solidarity but which severely interfere with our lives and personal and political liberties, justifiable in the liberal constitutional state? Should, in so-called triage-situations, where tragic choices about the distribution and allocation of scarce intensive care resources have to be made, some lives be deemed more valuable for society than others? Does, where prioritizations have to be made, the principle of equality impose a judicially administered positive duty on democratic legislatures to act in order to ensure that no person is discriminated against on the basis of his or her disability or age? And, perhaps equally dramatically, are programmes for compulsory vaccination ever justifiable to protect life and the proper functioning of the healthcare system?
These are deeply uncomfortable questions over which the public is often bitterly divided both philosophically and politically, sometimes even to the point of violent dissent as it is currently happening in many cities across the world.
What role for courts?
In systems with constitutional-legal review, those questions inevitably reach the courts, charged with reviewing the proportionality assessments made by democratic legislatures and the executive. Yet courts themselves increasingly operate in a climate of popular distrust with regard to procedural checks and regulatory functions of constitutions. Popular distrust doesn’t stop at the water’s edge, as it were. In other words, the constitutionalist strategy of bracketing policy disagreement and of scrutinizing democratic legislatures against the benchmark of some shared higher law has itself come under deep suspicion and strain.
So, what role for courts? I can offer here only some very tentative remarks, drawing on two recent rulings by the German Federal Constitutional Court (FCC) about COVID-19 measures. These are of interest for two reasons.
First, the German constitution places great emphasis on the inviolability of human dignity as its anchoring principle, a commitment to an understanding that “life cannot be weighed against life”. In concrete legal and political institutional practice, the dignitarian outlook has meant that, under German law, fundamental rights have taken on a dual meaning, as both negative rights against the state but also as “objective principles” which have to be contextualised in all spheres of law and can even condense to a positive state duty to protect.
Second, in its longstanding jurisprudence, the German FCC quite explicitly holds itself out as democracy-enhancing. It seeks to provide a proceduralizing framework for the legislative margin of appreciation—one that is at pains not to do away with democratic choice and leeway, but which is still robust enough to instigate and redirect legislative action in situations of perceived constitutional shortfall. Can this conception of judicial legitimacy, if it amounts to that, become a model for conflict-resolution when society’s divisions run deep?
The German constitutional court’s and the German Covid-19 measures
In its decision of the First Senate of 19 November 2021 – 1 BvR 781/21 et al., the German FCC rejected various constitutional complaints challenging the curfews and contact restrictions measures which had been inserted into the German Protection Against Infection Act as part of an overall domestic protection strategy—the so-called “federal pandemic emergency brake”—to protect life and health and to maintain the proper functioning of the healthcare system as exceptionally significant interests of the common good.
The impugned emergency-brake stipulated that, if the number of new SARS-CoV-2 infections per 100,000 inhabitants within seven days (seven-day incidence rate) were to exceed the threshold of 100 in a given city or district on three consecutive days, the measures would apply in that locality, but would cease to apply once the seven-day incidence rate in a city or district dropped below 100 new infections per 100,000 inhabitants on five consecutive working days. Private gatherings in public or private spaces were permitted only if they were attended by members of one household only plus one other person including any children under the age of 14 belonging to that person’s household. Gatherings that took place exclusively with the participation of members of the same household, exclusively with the participation of spouses or partners, or exclusively in the exercise of a right of custody or contact with regard to minor children, or in the context of funerals or commemorative events for up to 30 persons remained exempted from contact restrictions.
Moreover, persons were prohibited from venturing outside residential homes between 10 p.m. and 5 a.m. However, venturing outside between 10 p.m. and midnight for the purpose of physical outdoor exercise remained exempt, as was going outside in order to avert a medical or veterinary emergency, to pursue one’s profession, to exercise rights of custody or contact with regard to minor children, or for similarly weighty purposes. A further ordinance set out further exemptions for vaccinated and recovered persons from, in particular, the restrictions imposed on private meetings, the curfew and sports.
The fundamental right to family
In its ruling, the FCC insisted that the probability of achieving a legitimate public purpose must always be proportionate to the severity of the interference. There was no doubt, according to the FCC, that these emergency-brake measures very severely interfered with important fundamental rights. The fundamental right to marriage and family guarantees the right to meet with one’s relatives or one’s spouse in the manner and frequency of one’s own choosing, and to cultivate family relationships.
The FCC carefully set out the normative content of the right to family life: it protects the actual community of parents living with and bringing up children, irrespective of whether they are married to each other or not; it also covers specific family ties such as those that may exist between adult family members and close relatives, in the same generation or over several. In addition to those rights, also the fundamental right to the free development of one’s personality protects close family-like ties even outside the scope of protection afforded to marriage and the family. It guarantees that the individual is not forced into loneliness; being able to meet other people at all, and of one’s choosing, is a foundational element of personality development.
Proportionality and democratic legitimation
However, as regards proportionality, the Basic Law affords the legislator with an important leeway in its search for fair balance between highest-ranking interests. Because of the legislature’s unique form of democratic legitimation, which is especially important under conditions of high uncertainty, the FCC’s review was limited to the question of whether the legislator’s assessment and prognosis of the dangers to the individual or the general public are based on sufficiently reliable foundations. This review may range from a mere light-touch review of evident errors to a review of reasonableness and even to a more comprehensive strong-form substantive review. If the interferences with fundamental rights are serious, uncertainties in the assessment of facts may not be unilaterally interpreted to the detriment of fundamental rights holders. Where scientific knowledge is tentative only and the legislator’s possibilities to draw sufficiently reliable conclusions are therefore limited, it is enough for the legislator to proceed on the basis of a context-appropriate and tenable assessment of the available information and evidence. The prohibition of excessive measures (the so-called Übermaßverbot) requires that the more severely individual freedom is restricted, the more significant the pursued interests of the common good must be.
In the end, for the FCC the linchpin was that, when designing the contact restrictions and curfews, the German legislature had taken care to introduce context-sensitive safeguards to limit the extent of interferences with the affected fundamental rights—the right to marriage and family life and the right to the free development of one’s personality in particular—without jeopardising the protection of life and health. Measures were not merely piecemeal but formed part of an overall domestic strategy which was oriented towards changing circumstances in the ongoing pandemic situation and also allowed for regional distinctions. So, they passed constitutional muster.
Protection against discrimination
By contrast, in its second ruling—the decision of the First Senate of 16 December 2021 (1 BvR 1541/20)—the FCC forced the legislature to do more in order to safeguard the constitutionally-mandated protection against discrimination of the disabled, who are specifically at risk in the pandemic, in the specific context of medical decisions—including by third parties—on the allocation of vital intensive care resources which are scarce and may not be sufficient for all those in need of treatment in the course of the coronavirus pandemic, that is, in a case of “triage”.
The complainants argued that no legally binding framework for triage, neither domestically nor at the international level, was in place ensuring non-discrimination in existential decisions on the allocation of intensive care resources in the event that shortages occur. The regime in place entirely relied on professional clinical-ethical recommendations and guidelines, issued by several expert bodies and based on informal expert consensus only. Those recommendations were clear that prioritizations were never to be made based on evaluating people or human lives, but with the aim of enabling as many patients as possible to participate in the care. The criterion of clinical success was therefore decisive. Accordingly, those with little chance of surviving are not treated in intensive care. The recommendations also expressly clarified that the principle of equality did not allow prioritisation on the basis of certain underlying diseases or disabilities and that no distinction between COVID-19 and other patients or according to vaccination status was permissible. All critically ill people were to be included, and no human life was to be deemed worth more than another. Decisions had to be taken on a case-by-case, based on the patient’s will and the clinical chances of success and various factors such as co-morbidity (simultaneous presence of two or more diseases or medical conditions in a patient) and the general state of health/frailty.
However, the complainants objected that these recommendations still remained too indeterminate to afford sufficient protection to the disabled. To ensure non-discrimination in decisions on prioritisations, a formal legal basis was required: indeed, only a formal legislative procedure would permit those affected—the disabled—to participate and exert influence and ensure that objective criteria are in place. The complainants argued that the task of administering intensive care necessarily involved complex and extreme life-and-death decisions which, in turn, involve many “subjective elements”. Thus, the system was rife with risks of discrimination, for example, due to unconscious stereotyping by attending doctors as regards co-morbidity and QALYS – “quality adjusted life years scale”.
A regime based on informal consensus was unable to eliminate risks of error and to adequately address further risks caused by lack of knowledge and by insufficient awareness of the specific needs of the disabled and hence the risk of rash decisions. For example, the expert guidelines failed to make sufficiently clear that the likelihood of survival must be defined solely as the likelihood of surviving the acute short-term medical episode in question, not the presumed long-term likelihood of surviving the acute medical episode. They also failed to clarify that decisions must be focused on the specific disease but not the generic link between disability and co-morbidity and that general life-expectancy cannot be a valid criterion for distributional decisions about scarce resources.
The FCC agreed with the complainants and ruled that the Basic Law imposed a positive duty on the legislator to put a legislative system in place in lieu of a system wholly reliant on informal expert consensus. The FCC sees itself as democracy-enhancing with regard to both substance and procedure.
First, the FCC held that a positive legislative duty to act typically arises in situations where persons are subject to targeted exclusion, amounting to an attack on human dignity, or in situations of structural inequalities where they no longer can take of their own interests democratically. A legal order that seeks to ensure equal participation of persons with disabilities in society simply cannot tolerate a disadvantaging on the basis of disability in situations that affected persons cannot themselves guard against and that entail immediate risks to their life and health, thereby jeopardising legal interests recognised as exceptionally significant in the Basic Law. Hence, the equality principle, enshrined in the German Basic Law, not only confers a defensive negative right against disadvantaging by the state, but also contains a decision on objective constitutional values that must be upheld in all areas of law.
Second, the FCC provided a normative framework for the legislator. On the one hand, the legislator is afforded broad leeway in designing a protective regime, but, on the other, it must act “without delay” and strike the appropriate balance itself. Within its margin of appreciation, the legislator must take into account that the already strained capacities in healthcare personnel and goods must not be additionally burdened in a manner that would ultimately subvert the intended goal of strengthening effective protection of the life and health of patients with disabilities. Also, a corresponding duty is incumbent on the legislator to protect the life and health of other patients as well, taking into account the particularities of clinical healthcare, such as the medical need for swift decision-making and the fact that final responsibility for medical evaluations in a given case rests with the attending doctors, based on their special professional competence and clinical experience.
Importantly, the FCC emphasized that, while the respect for human dignity prohibits any weighing of life against life, that does not per se preclude the legal definition of framework criteria. Within that dignitarian framework, it remains possible for the legislator to define constitutionally sound criteria for decisions on how to allocate scarce resources necessary to save lives through procedural requirements—such as requiring allocation decisions to be taken by multiple persons (“multi-eyes-principle”) or proper documentation.
Are mandatory vaccines compatible with democratic legitimacy?
Does the democracy-enhancing moral grounding that, as I have argued, animates these decisions also support imposition of a compulsory, sanctions-backed vaccination programme that, by its very nature, deeply interferes with personhood and the most intimate rights to bodily integrity? After all, why should the many suffer and be exposed to risks, because few are just unreasonable?
By way of some concluding remarks, I wish tentatively to explore and elaborate some reasons for my own hesitancy to answer the question about compulsory vaccination in the affirmative. (In so doing, I will not address here the ruling by the ECtHR on child vaccination Vavřička and Others v. the Czech Republic, Applications nos. 47621/13 and 5 others, of 8 April 2021).
Those tentative reasons have to do with the very idea of legitimacy as bedrock value: the idea (or, if you will, political-liberal aspiration) that a political order that is stable for the right reasons and long-term is only possible if based on the moral insight and voluntary collaboration of a sufficiently large number of citizens living under it. As John Rawls wrote, calling this the liberal principle of legitimacy, we owe our respect, cooperation, and obedience to the prevailing governmental regime if that regime operates, under “a constitution [that] all citizens may reasonably be expected to endorse in the light of principles and ideals” that should be acceptable to them “as reasonable and rational”. In other words, political coercion can only ever be justified in the given context of modern post-metaphysical societies if it implies the will and principled moral insight of its addressees. But (always elusive) moral insight cannot be generated through coercion. Coercion risks driving dissent underground and would aggravate society’s existing divisions. This is, I think, where the proverbial spade turns and where coercion through law risks becoming counterproductive and would just cause further mutual alienation and destroy the bases of civic friendship.
You may object that my hesitancy is just typical liberal squirmishness about coercion, reflecting the privilege of members of the home-working class who can, to a very limited degree, protect themselves. But to put matters differently, it is also the hesitancy to give up the hope that the insight that collaboration under law requires can be brought about through patient communicative acts of persuasion and efforts to try to understand where the other side is coming from, if that is possible, and even if the other side seems unreasonable or obtuse. No doubt, there can be nuanced solutions that can create incentives for vaccine-sceptics to come around. Indeed, as reported in The Guardian, an example for this already exists in the Netherlands where medical doctors have launched a “vaccination doubt line” which is already receiving a thousand calls a day from those who are still unsure whether or not they should get jabbed against the coronavirus. Those in doubt can call anonymously and ask independent medical professionals, rather than resort to unreliable sources for advice, without being pressurized or, indeed, state coercion.
Dr Oliver Gerstenberg is Senior Lecture in the UCL Faculty of Laws. He is the author of Euroconstitutionalism and its Discontents.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.
Photo by Tingey Injury Law Firm on Unsplash.