The crumbling compromise: German abortion law at the brink of a third reform debate?
By many Germany is regarded as a model student when it comes to human rights protection. However, this expectation remains unfulfilled in the abortion context since contrary to recommendations by international organizations (e.g. by the World Health Organization, the European Commissioner for Human Rights or the United Nations Human Rights Committee), Germany still criminalizes and therefore stigmatizes abortion services. And the Federal Republic does not seem open to legal change. The United Nations Committee on the Elimination of Discrimination against Women “CEDAW Committee” demanded Germany in March 2017 to liberalize its abortion law. More specifically the CEDAW Committee advised the federal republic to eliminate the mandatory counseling and three-day waiting period prior to an abortion and to ensure their health insurance coverage. Surprisingly for especially non-German lawyers, the grand coalition government responded in 2019 that a reform is not possible. It reasoned this answer, inter alia, with the statement that the legal status-quo reflects “a hard-won societal consensus in Germany, which serves to balance out the irreconcilable interests of the pregnant woman in the case of an intended abortion and the right to life of the unborn.”
And indeed, it seemed like the current §§ 218 ff German Criminal Code which were passed in 1995 after a long legislative reform process and the second abortion decision of the Federal Constitutional Court (FCC) satisfied many in the German legislative arena. However, lately the answer of the German government seems to lose its persuasiveness. Even though the Conservatives (CDU/CSU), the Social Democrats (SPD), the Liberals (FDP) and the right-wing AfD are still holding on to the status quo, the Left Party (Die Linke) and the Greens (Bündnis 90/Die Grünen) appear to return to their demands from the 1990s. At the beginning of the reform process in 1991 the Greens and the predecessor of the current Left Party, the PDS, aimed at reading a right to abortion into the constitution or in case of the PDS adding it. While the PDS stuck to this claim, the Greens in the end adjusted their aims to the jurisprudence of the FCC. Now however, the new basic program “Grundsatzprogramm” of the Greens, which was adopted in November 2020, seems to call the status quo into question. It demands:
“The right to self-determination over one’s own bodies and one’s life must be effective for all humans and especially for women, girls, trans-, inter- and no binary people with or without disability without limits. It is part of a good public health care to realize that right. Part of it are self-determined abortions which do not belong into the criminal code and the costs of which must be covered”
Similarly, the parliamentary group of the Left Party aims at removing the §§ 218 ff from the Criminal Code. The party stated already in 2017 under the headline “right to abortion”:
“According to §218 Criminal Code an abortion is still unlawful in Germany. A penalty can regularly be avoided through the confirmation of a medical indication (physical or mental impairment) or of a criminological indication (rape) or a counselling which according to the pregnancy conflict law is supposed to be open-ended, but at the same time serves the protection of the unborn life. A contradiction in itself. This situation is not sufficient for us. We are aiming for the deletion of § 218 Criminal Code without replacement. We equally want to abolish §219 Criminal Code , which regulates the so-called prohibition of advertisement, but is actually a prohibition of information. Instead we want to expand the voluntary counselling services and oblige plan hospitals to provide abortion services.”
It needs to be considered that a decriminalization of abortion would not easily comply with the constitutional abortion jurisprudence of the FCC currently in place. In the “Abortion II” decision the FCC left only a narrow leeway for decision making to the legislator. The court postulated that the Art. 1 I and Art. 2 II Basic Law grant a constitutional right to life to the unborn which obliges the state to protect the unborn against its mother by imposing a general legal duty on the pregnant woman to carry the pregnancy to term (para. 149). It moreover stated that the legislator needed to enforce this obligation through repressive and preventive legal instruments, which on the one hand discourage a pregnant women from having an abortion in the individual case, but on the other hand also influence the values of society and its understanding of what is right or wrong (para. 152). The FCC named as specific requirements for the design of such a law, inter alia, that an abortion cannot be fully legal within a specific period of time without any additional exceptional circumstances being present (para. 157 ff.). Moreover, according to the FCC, the state is obliged to protect the unborn through the enforcement of measures that support pregnant women and mothers proactively such as financial support and to visibly stand for the protection of the unborn life (para. 168 ff.).
We do not know how the FCC would decide in the abortion question today since it is generally not bound to its previous jurisprudence (see this speech by former FCC president Prof. Dr. Dr. h.c. Andreas Voßkuhle). Surely, it could have an influence that almost 30 years passed since the last judgement and that different from 1993 since this year the posts of the judges are shared equally among men and women. What the recent initiatives of the Greens and the Left Party show however is that an evolving political discourse about the abortion issue needs to be accompanied by a lively scholarly dialogue especially among constitutional lawyers. To this day, the recent debate among German scholars on abortion has been quite one-sided and very uncritical. According to Prof. Dr. Ulrike Lembke, who holds the chair for “Public Law and Gender Studies” at Humboldt University Berlin and is one of the few critical voices, “the woman seems to disappear” when legal scholars start to discuss the embryo. Hence, the problem of the German legal discourse is in her view its homogeneity. “There is almost no legal literature that takes a different position.” Also according to Prof. Dr. Friederike Wapler, professor for Legal Philosophy and Public Law at the University of Mainz, the concepts of “reproductive autonomy” and “reproductive rights”, which underlie the discussion about abortion in international law, are not present in the German legal politics and scholarly discourses.
It was therefore very refreshing to read the blogpost of Vera Schürmann in which she called the durability of the current constitutional abortion compromise into question. Considering the political developments, it is of importance that many more scholars overcome the apparent taboo of truly engaging with the status quo also critically. A glance at the constitutional scholarship from other countries in which constitutional abortion debates did not stop in the 1990s can serve as an inspiration. I would propose the German version of a feminist judgement project, a type of scholarship that flourishes abroad. Wer macht mit?
 It’s a mistake by the Left party, it should be §219a.