Can and should “risk groups” be subjected to tougher restrictions than the rest of the population? This is already being discussed politically. Lawyers have a clear answer.
Week four of the exit restrictions begins, and if one motto is used, the motto is “relaxation” – to get public life and the economy going again. Even more than before, it will be about differentiation, away from blanket prohibitions, towards targeted measures. Depending on the risk of infection, one will make distinctions that give one more freedom than the other.
One of the most oppressive differentiations has been discussed for some time: Can and should “risk groups”, ie older people and those with previous illnesses, be subjected to tougher restrictions than the rest of the population? The Mayor of Tubingen Boris Palmer (Greens), always good for unpopular proposals, has it in the daily newspaper To put it this way: “I think it is justifiable to issue such quarantine orders for people over the age of 65 and because of previous illnesses.” Because they have a significantly higher risk of dying from a corona infection, so that, according to Palmer’s logic, their isolation could both protect their own lives and prevent overloading the health system.
He calls this a new generation contract: the younger ones go to work, while the old and the sick do without social contacts. The old give away their freedom to the young if you will. The response from my party promptly followed: “If you separate the old and the chronically ill, I’ll be at the Federal Constitutional Court the next day and file a lawsuit,” said former Bundestag member Hans-Christian Strobel, 80, to the editorial network in Germany.
Those who risk infection also endanger others
Of course, it must first of all be discussed politically whether one would like society to be subjected to such segregation along the age limit. From the perspective of the Basic Law, one immediately thinks of the principle of equal treatment, which could be violated. But is that true? The former constitutional judge Gertrude Lubbe-Wolff has in the Frankfurter Allgemeine Newspaper An all-clear signal is given early: If in the interests of everyone whose chances of survival depend on sufficient treatment capacities, one imposes more restrictions on the particularly endangered group, then this is not a prohibited age discrimination, but a pragmatic consideration.
Similarly, the law professor Hinnerk Wissmann from Munster, who even advocated separate shopping times, argued in the same sheet: morning as a pensioner’s time.
Bonn constitutional lawyer Klaus Ferdinand Garditz also sees constitutional scope for different rules. The idea is: “We protect certain groups particularly well to grant others more freedom.” According to him, certain groups are already being burdened with greater burdens than others, such as shopkeepers, who are now going into bankruptcy and are affected by their fundamental rights. And by the way, also old people in nursing homes, who are currently closed off from visits. “If you think about isolation over four to six weeks, that could be justified for risk groups,” says Garditz in an interview with the Eastern Herald Newspaper. According to him, such rules for risk groups would be a kind of “special sacrifice” for the benefit of the general public, but one from which older people, in particular, would benefit most. Because the goal is to ward off the overload of the health system, which ultimately benefits the most vulnerable.
And what about freedom to endanger yourself? Shouldn’t older people decide for themselves whether they would rather accept the risk of infection than the loneliness of the quarantine? How does the smoker, as long as he smokes outside, be free to risk his health?
The scientist’s answer ultimately points to the great reservation under which freedom is currently at stake. Anyone who risks infection not only accepts self-harm but creates dangers for everyone. “He not only plans about his health but also about the health of others,” says Garditz.
This becomes clear from the problem of “triage”, the incredibly difficult question to solve, who would have priority if there were too few intensive care beds for too many seriously ill people. From ethics and lawyers, it is clear that younger people are not automatically given preferential treatment. But this means: If you risk an infection and thus – especially as an old person – a serious illness, you could, in extreme cases, take away the bitterly needed intensive care bed. Or, as Garditz puts it: “Because of his behavior, others die.”