Vaccination against one parent’s will
Recently, the Swiss Federal Supreme Court dealt with a child protection case (Ruling 5A_789/2019 of the 16th of June 2020). The court had to decide whether the father may vaccinate the child against measles without the mother’s consent. The court ruled that if the parents were at loggerheads, the competent authority must decide on this issue. In this case – the Court continued explaining –, the authority has to base its decision on the recommendation of the Federal Office of Public Health.
So, in the future we can expect the follwing: if the Federal Office of Public Health recommends vaccination for a particular disease, the child protection authority will approve the vaccination in question against the will of one parent.
Is the compulsory vaccination against Corona coming now?
The Federal Law regulates the basic principles on vaccination. It gives the Federal Council the right to take measures in the event of an exceptional situation. This may include an obligation to vaccinate. The Federal Supreme Court didn’t have to decide yet, whether the compulsory vaccination is constitutional. However, in 1973, under the old Epidemic Law, it qualified a permanent compulsory vaccination by the cantons as constitutional (Ruling 99 Ia 747 ff.). In particular, it considered compulsory vaccination against diphtheria to be permissible.
Wer cannot foresee whether the current situation with Corona will lead to a compulsory vaccination. But under the current law, we believe that an obligation to vaccinate can be enforced by means of physical coercion. This would hardly be compatible with the personal freedom anchored in the Federal Constitution.
Yet, unconstitutional federal law is decisive
But here is the questionable part: federal laws take precedence over the constitution, according to the Article 190 of the Swiss Federal Constitution. This applies even if the federal laws violate constitutional rights such as personal freedom. At least, the ordinance to the Epidemic Law prohibits vaccination by means of physical coercion. We will see how long this ordinance holds up, if other countries introduce compulsory vaccination against Corona.