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Touro Law Review

Touro Law Review

Abstract

This Article discusses the limitation of rights due to pandemics. It analyzes from a constitutional standpoint the holding of the German Federal Constitutional Court (Das BUNDESVERFASSUNGSGERICHT) from April 2022 as a symptom of moral panic disguised through an analytical process. Though it focuses on this case, it sheds light on the moral panic that characterized many countries’ approaches during the COVID-19 pandemic. On April 27, 2022, the German Federal Constitutional Court held that a provision to provide proof of vaccination against COVID-19, recovery from COVID-19, or a medical exemption to COVID-19 vaccination as a condition of employment in the health and care sectors was constitutional. In the name of the necessity to protect life—which is undoubtedly the supreme value—the German Federal Constitutional Court was dragged after the global moral panic and has given a hand to disproportionately trampling human rights. It refused to recognize an alternative means of submitting negative COVID-19 tests as a condition of working with vulnerable people and as a less restrictive means of reaching the goal of protecting vulnerable people. It did not give weight to the autonomy of the individual, including vulnerable people, to take risks. It did not accord the due weight to the injury to livelihoods, career losses, the interruption of academic studies, and the breach of bodily integrity. It needed to adequately address the

legitimacy of the sacrifice of the individual for the collective good. The failure to satisfy the requirement of proportionality could indicate the underlying intention of the ruling—putting pressure on people to get vaccinated. The COVID-19 pandemic crisis illustrates the great potential of coercive public health powers to infringe on civil liberties and the fragility of human rights when faced with danger to health. This Article advances the case for demonstrating greater respect for peoples’ autonomy to take health risks before establishing coercive measures— which curtail fundamental rights—to prevent or reduce the spread of infectious diseases. The Article sets forth principles the state should consider before limiting constitutional rights and claims that people around the world should not be deprived of their choices.

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