Debates Come in Waves: Abortion Rights in Germany
by Teresa Döring
In 2019, the criminal case against Kristina Hänel, a medical practitioner who published the fact that her clinic performs abortion on her website, re-fuelled a debate on abortion in Germany. Her website violated the “ban on advertisement” regarding abortion.[i] As a result, a new subparagraph was added to section 219a of the German Criminal Code.[ii] It is the newest instalment of a centuries-long public, political, and judicial discussion on abortion law in Germany.
But wait, you may ask. The German Criminal Code? Are abortions not legally accessible in Germany?
A Brief History of Abortion Law in Germany
As per law, abortion (unless medically necessary or in cases of assault) are indeed a criminal offence as stated in paragraph 218 of the German Criminal Code. The law originated all the way back in 1871 when the very first criminal code was passed to govern the recently unified Germany. During the Weimar Republic, efforts by social democratic and communist parties to liberalise it failed; the Third Reich saw a severe toughening of regulations and punishment; and after the war, West Germany largely moved back to pre-war regulations while abortion became possible in exceptional medical, criminal or social cases in the East.[iii][iv] After reunification, fierce debates across party lines, East-West divisions, divided between conservative-bourgeois and progressive ideals, formed a compromise in 1993.[v] While abortion remained a criminal offence, under certain provisions, the offence would be deemed not fulfilled. In that case, no criminal persecution would take place.[vi] Abortion, with limitations, became accessible.
Family Planning as a Human Right
The discussion about abortion is grounded in moral debates, centring complicated topics about what human life is, what bodily autonomy means and how gender influences independence and reproduction. What is at its core an extremely private issue remains of high interest to nation states and religious institutions. In 1968, the United Nations passed the Tehran Proclamation which announced the human right to family planning, to “decide freely and responsibly on the number and spacing of their children and a right to adequate education and information in this respect”.[vii] While the Tehran declaration does not mention abortion, fifty years later, in 2018, the UN published a general comment on the right of life which does.[viii]
If you heard alarm bells ringing when reading the UN used the term “right of life” to discuss abortions, you might be pleasantly surprised. Contrary to many anti-abortion activists who argue that abortion be criminalised by virtue of the foetus’s right to life, the UN emphasise that state measures of regulating abortion must not interfere with the right to life of the pregnant person. The right to life does not only mean the status of bodily and mental integrity but champions also a life with dignity.
Abortion in Germany Is a Moral Issue, Not a Juridical One
“States parties should […] remove existing barriers that deny effective access by women and girls to safe and legal abortion”[ix]. Let’s evaluate this sentence from the UN comment on the right of life in the German context. Abortion remains a criminal offense in Germany. To access one, I would have to seek a state-certified advisory body and undergo a consultancy which, according to the criminal code, “must be guided by efforts to encourage the woman to carry the child to term”.[x] Such a consultation is anything but pluralistic, neutral, and with the best interest of those who seek it. Then comes a three-day waiting period. After I’d need to find suitable practitioners — as medical staff may refuse to perform abortions — and according to Kristina Hänel, prolonged waiting periods for appointments are currently an issue.[xi] I would have to pay around €400, and although coverage for applicants in need exists, this is another barrier. It punishes the poor, delays the process and makes abortion an issue of classism.[xii] Lastly, I must overcome these obstacles to have an abortion performed within the first twelve weeks of pregnancy.
None of this takes into account the social stigma and moral opposition which comes with undergoing an abortion. Why, if it is not prosecuted after conditions are met, does abortion remain in the criminal code? Why are the laws around continually amended, liberalised and deliberalised over decades, instead of rethinking the issue and writing legislation not rooted in a law introduced 150 years ago? The answer is a complex entanglement of moral forces in politics and society. The Christian churches are an important aspect, and their continuing lobbying against the access to safe and legal abortions demonstrate how separation of church and state is not a reality in Germany today.[xiii] Also, the “advertising ban” on abortion illuminates the issue: the main purpose is to prevent abortions becoming “normal” in the eyes of the public.[xiv]
Tiny Steps, Slow Liberalisation, and Waiting for a Breakthrough?
So the circle will keep going: discussions on abortion will continue and, every once in a while, made prominent by a specific case, they will reach the surface of public and political life. This happened in the 1970s, when 374 women publicly declared having an illicit abortion in an effort to break the stigma. In the late 1980s, a process against a doctor practicing abortions in secret brought the issue to the forefront. Now, Kristina Hänel’s case, once again, led to an amendment but no substantial change in law and practice. Like waves, the abortion debate will continue to drift in and out of media and political spaces.
There is hope: changes in other countries — the recent citizen’s assembly and referendum in Ireland comes to mind — continue to renew interest. This debate is also somewhat reminiscent of the legalisation of same-sex marriage (“Ehe für Alle”) which, after decades of attempted legislation and rulings by the Federal Constitutional Court, was passed somewhat abruptly by the German parliament in 2017. It is likely that at one point, similar to the legalisation of the Ehe für Alle, the criminalisation of abortion will generate a large enough reckoning for it to be removed from the criminal code. Yet, the practical access to abortion services, de-stigmatisation and non-discrimination when it comes to abortion will likely take longer to implement even when the law has finally been changed. And time is crucial: excruciatingly slow discussion and even slower actions cost years. And time is something people who become pregnant against their will often do not have.
References
[i] Fischer, L. (2019). “Das hier ist kein Sieg. Weder für mich noch für Frauenrechte”. Zeit Online.
[ii] Deutscher Bundestag (2019). Bundestag stimmt für Neufassung des Paragrafen 219a des Strafgesetzbuches. https://www.bundestag.de/dokumente/textarchiv/2019/kw08-de-schwangerschaftsabbruch-do-594758
[iii] Deutscher Bundestag (2017). Historische Debatten (7): Abtreibungsparagraf 218. https://www.bundestag.de/dokumente/textarchiv/abtreibungsparagraf-200096
[iv] von Behren, D. (2019). Kurze Geschichte des Paragraphen 2018 Strafgesetzbuch. Bundeszentrale für Politische Bildung. https://www.bpb.de/apuz/290795/kurze-geschichte-des-paragrafen-218-strafgesetzbuch
[v] Baier, A. (2020). Wo Medizin und Strafrecht sich berühren. Gunda Werner Institut, Heinrich-Böll-Stiftung. http://www.gwi-boell.de/de/2020/04/30/wo-medizin-und-strafrecht-sich-beruehren?utm_source=website&utm_medium=facebook
[vi] § 218 StGB. English Translation: https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.pdf
[vii] United Nations (1968). Final Act of the International Conference on Human Rights, Tehran, p. 15.https://legal.un.org/avl/pdf/ha/fatchr/Final_Act_of_TehranConf.pdf
[viii] United Nations Human Rights Committee (2018). General comment №36 (2018) on article 6 of the
International Covenant on Civil and Political Rights, on the right to life. https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf
[ix] Ibid, p. 2.
[x] § 219 Absatz 1 Satz 2 StGB. English Translation: https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.pdf
[xi] Hänel, K. (n.d.). Die Versorgungslage zum Schwangerschaftsabbruch hat sich in Deutschland verschärft. https://kristinahaenel.de/page_start.php
[xii] pro familia (2001). Standpunkt Schwangerschaftsabbruch. https://www.profamilia.de/fileadmin/publikationen/Fachpublikationen/Standpunkt_Schwangerschaftsabbruch.pdf
[xiii] Großbölting, T. (2013). Der verlorene Himmel: Glaube in Deutschland seit 1945. S. 131. Vandenhoeck & Ruprecht.
[xiv] Gschwendtner, E. (2018). Eingriff erlaubt, aber nicht darüber reden. Humanistische Union. http://www.humanistische-union.de/nc/publikationen/vorgaenge/online_artikel/online_artikel_detail/back/vorgaenge-221222/article/eingriff-erlaubt-aber-nicht-darueber-reden/
Images:
Image 1: Göttingen, Demonstration gegen § 218. Unknown Author. Bundesarchiv, B 145 Bild-F079091–0006 / CC-BY-SA 3.0 https://www.bild.bundesarchiv.de/dba/de/search/?query=B+145+Bild-F079091-0006
Image 2: Kristina Hänel, Avitall Gerstetter (Gesang) und Andreas Altenhof (Piano). Photo: Stephan Röhl. Heinrich-Böll-Stiftung. CC BY-SA 2.0 https://flickr.com/photos/44112235@N04/46568268194
