In the case of measles vaccination, a combination preparation is always administered.Photo: Astrid860 / iStock
Vaccination is an irreversible decision and therefore an irreversible interference with physical integrity. The Magdeburg Higher Administrative Court leaves no doubt about that. In the case of a seriously ill schoolgirl, with reference to the minimal measles cases, the court saw no need for the girl to have to be vaccinated against measles.
In Magdeburg, the Higher Administrative Court has issued a fundamental decision on the so-called measles protection law, which gives some parents hope. The court also included the high vaccination rate and low measles cases in its decision.
Since March 1, 2020, measles vaccination has been mandatory for certain groups of people in Germany. However, anyone who can detect measles antibodies in a laboratory test does not need to be vaccinated. Parents who cannot provide proof of this for their children will be refused entry into childcare. Since there is no single measles vaccine, doctors use a combination vaccine against measles-mumps-rubella or measles-mumps-rubella-chickenpox.
In the case of an eight-year-old seriously ill girl from Magdeburg who was supposed to provide proof of immunity, the parents can now breathe a sigh of relief. The parents refused to force vaccinate their daughter. Due to the existing compulsory education, it was not possible for the parents to simply stop sending the child to school in order to bypass the proof of measles protection. The authorities only sent the father the notification, according to which the child had to produce a vaccination certificate or be vaccinated. If they refused, they were threatened with a fine of 2,000 euros; alternatively, there was talk of imprisonment. The mother did not receive such a request. The correspondence was only conducted through the father.
The girl’s parents both appealed against the decision of the health department and applied for temporary legal protection at the Magdeburg Administrative Court. Evidence of existing measles antibodies was presented for the girl, which was denied by the authorities. This evidence was sufficient for the court of first instance, so that the parents were right. On the basis of her lawyer, Dr. Uwe Lipinski, the constitutional objections presented to the Measles Protection Act were not discussed in detail by the court.
The state capital Magdeburg lodged an appeal against the decision, which has now been rejected in a recent case law by the Higher Administrative Court (OVG) Magdeburg. According to the family lawyer, this decision should also be significant for regions outside the state of Saxony-Anhalt.
High vaccination rates vs. compulsory vaccination
Before the measles vaccination was introduced in Germany on March 1, 2020, the vaccination rates for the first and second vaccination were already over 90 percent.
The OVG saw no particular public interest that the seriously ill girl should be vaccinated immediately, as this would result in considerable restrictions on her rights. A vaccination cannot be reversed either. Immediate execution of the request to submit proof of measles immunity would constitute an encroachment on parental rights protected by Article 6 II 1 of the Basic Law as well as the protection of physical integrity Measles would have two vaccinations administered to the public, this encroachment on fundamental rights could not be reversed in the event of the main proceedings being won.
The court was also unable to recognize that the goals pursued with the so-called measles protection law are seriously jeopardized. “Rather, the respondent bears [Behörde] in the complaint procedure itself that measles diseases had almost not occurred in the last few years due to the high vaccination rates in Saxony-Anhalt, ”the court said. This means that the “endangerment of other people” put forward by the authorities if the pupil does not get vaccinated is blanket and cannot justify “the irreversible consequences for the no less important fundamental rights” of the girl in the event of a vaccination.
According to the Robert Koch Institute, there were only 76 measles cases in all of Germany in 2020, eight of which were vaccinated against measles. No deaths were reported.
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Measles protection court questioned
The lawyer of the family concerned welcomed the decision of the OVG. Not only that an urgent legal protection application has a sufficient chance of success. The court rightly emphasized the irreversibility of a vaccination carried out and pointed out that there is or has not been a measurable number of measles infections in Saxony-Anhalt.
“This rightly calls into question the real reason for the so-called measles protection law,” said Lipinski. Because if there was and is no significant number of measles infections, no one is specifically and to a considerable extent at risk – not even those very few people who cannot be vaccinated due to a medical contraindication.
The only regrettable thing about the OVG decision is that the court did not comment on the crucial question of the formal or material unconstitutionality of the so-called Measles Protection Act, according to Lipinski. A relevant decision by the Federal Constitutional Court is still pending.
The Heidelberg lawyer hopes that other higher courts will also follow the view of the OVG Magdeburg. Parents of school-age children who are requested by the health authorities to have their school-age children forcibly vaccinated are advised by the lawyer to object to the order. According to the OVG, a notification that is only sent to one parent is formally illegal and not enforceable. A decision about vaccination is so important that one parent cannot decide on it alone. Parents should not shy away from filing a preliminary application for legal protection at the court.
A “transition period”, with which children who have already started school in 2020 must prove immunity to measles, was initially extended to December 31, 2021. Another extension was initiated by the federal states.
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