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Dark side of the principles of non-discrimination and proportionality: the case of mandatory vaccination
  1. Filip Horák,
  2. Jakub Dienstbier
  1. Constitutional Law, Charles University Faculty of Law, Praha, Czech Republic
  1. Correspondence to Dr Filip Horák, Constitutional law, Charles University Faculty of Law, Praha, Czech Republic; horakfil{at}


Deciding the conflict between various rights and interests, especially in medical ethics where health and lives are in question, has significant challenges, and to obtain appropriate outcomes, it is necessary to properly apply the principles of non-discrimination and proportionality. Using the example of mandatory vaccination policies, we show that this task becomes even more difficult when these principles lead us to counterintuitive and paradoxical results. Although the general purpose of these principles is to ensure that decisions and policies seek the highest and broadest possible enjoyment of rights for all (ie, the least restrictive solution), they achieve the complete opposite when applied to mandatory vaccination policies. To highlight and explain these paradoxical results, we present a typology of fifteen hypothetical mandatory vaccination policies containing various degrees of restriction and apply well-established non-discrimination and proportionality tests from constitutional law to each. We argue that mandatory vaccination policies exhibit two characteristics, namely the non-linear relationship between their general purposes and specific goals and the involvement of life and health, suggesting that more restrictive policies should prevail even though less restrictive policies might fail these tests. Using clearly structured and rigorous methodology from constitutional law, the proposed approach delivers a fresh view on the core ethical principles of non-discrimination and proportionality and a potentially useful tool in helping resolve also other challenges encountered in medical ethics beyond mandatory vaccination policies.

  • Human Rights
  • Public Policy
  • Ethics- Medical
  • Right to Health

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Data sharing not applicable as no datasets generated and/or analysed for this study.

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Data availability statement

Data sharing not applicable as no datasets generated and/or analysed for this study.

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  • Contributors FH (acting as guarantor) came up with the original idea of paradoxical results of proportionality and non-discrimination tests and the idea of a non-linear relationship between the general purposes and specific goals of mandatory vaccination policies. He also did 50% of the review work (relevant articles and books) and 70% of the manuscript writing. JD contributed with the idea of implementing positive constitutionalism into the theory. He also carried out 50% of the review work (relevant case-law) and 30% of the manuscript writing. Overall, the contributions of the two authors are as follows: FH 60%; JD 40%.

  • Funding This output was supported by the NPO "Systemic Risk Institute" number LX22NPO5101, funded by European Union - Next Generation EU (Ministry of Education, Youth and Sports, NPO: EXCELES) and by Univerzita Karlova v Praze (SVV 2023-260 619).

  • Competing interests None declared.

  • Provenance and peer review Not commissioned; externally peer reviewed.