Merten Breisacher

Universität Göttingen, Juristische Fakultät

 

In 2018 a German court uphold its judgment regarding a doctor from Giessen.

They saw a breach of §219a StGB in her actions which prohibits the advertisment of abortion in Germany. She provided a link on her website which would lead to another page which conteins information about this procedure. Next to her to other doctors were prosecuted for the same offence.

These cases brought the topic of abortion back into the focus of the media and politics.

Some activist demanded a complete legalisation of abortion while others argue in favour of a reform of  §219a StGB.

Technically speaking abortion under German law is an offence against life and therfore, as said earlier, still illeagal.

The current legal situation, pursuant §218 I S.1 StGB, is that abortion is punishable with up to 3 years in prison or a monetary penalty. But §218 I S.2 StGB clariefies that an intervention before the egg has settled in the womb of a woman is not considered an abortion.

An Abortion under German criminal law is defined as any action which provide an impact, directly or indirectly, on the foetus which leads to its death.

  • 218 StGB is the general rule. This means that there are exceptions in which an arbortion is not legal but will not fullfill the offence in §218 StGB according to §218a StGB if the requirements named by it are met.

It names four scenarios in which this exception is granted:

  1. If the woman demands the abortion, has a certificate by a doctor according to §219 S.2 StGB that she was advised about the intervention at least three days before the prodecure, the abortion is carried out by a doctor and that since the conception no more than twelve weeks have passed.
  2. An abortion is justified if the abortions happens on demand of the pregnant woman and purusuant medical examination of a doctor to avoid danger for the life and physical and mental health of the pregnant woman if the the danger is undurable. The abortion must also be a carried out by a doctor.
  3. The conditions of §218a II are fullfilled in cases in which the pregancy is the result of a sexual cime according to §§176-178 StGB aslong the woman demands the abortion, which is carried out by a doctor and not more than twelve weeks have pasted.
  4. The last exception that the pregnant woman was advised by a doctor and the conception wasn’t longer than 22 weeks ago. This one only applies to the woman but not for the doctor who carries out the abortion. This means that a woman still has the possibility to go to another country in which the laws regarding this procedure are looser than in Germany and have an abortion without the fear of prosecution when she returns.

So this leaves the question from the beginning if a complete legalisation would be possible in the light of the current Constitution.

The German Constitution does not speak about the topic of abortion expicitly.

But a right to it, atleast in certain situations, can be read out of Art. 2 II GG.

Art. 2 II GG speaks about the right of life and of the integrity of the body which is granted to everyone and therefore to mother aswell as to the fetus.

The right of life and physical integrity of the mother and of the fetus are in conflict when it comes to this topic. Therefore, these two must be brought into balance.

But since the value of a life cannot be measured against the one of someone else a comparison of the two and thus a decision is nearly impossible. One life cannot outweigh another which is a basic principle of the German Constitution.

Because of its importance the State is required to protect every life even the unborn one.

According to this an abortion can only be possible in situations, in which it is unreasonable and unbearable for the mother to keep the child. This “Non- exactable” situation means, according to the German Constitutional court, that the woman must be subject to burdens which demand such a degree of sacrifice of her own existential values that one could no longer expect her to go through with the pregnancy.

This leads to the conclusion that there is no general right for abortion but a right of abortion in certain situations. Thus, a reform regarding the complete legalisation is probably not very realistic.

But when it comes to the prohibition of advertisement of abortion this seems not unlikely in the future.

Many politician, including Heiko Maas (SPD), believe that change is needed. Maas argues that §219a StGB is a relic from the Nazi-era which need to be abolished.  It is argued that this law prevents women from getting necessary information.

Supporters of an elimination see a possible breach of the freedom of information from Art. 5 GG.

On the other hand, the right-wing party AfD as well as the conservative CDU, the coalition partner of the SPD, oppose the suggestion of an elimination of the ban on advertisement. Annegret Kramp-Karrenbauer, the newly elected Chairman of the CDU, tweeted that the ban needs to remain because of the overriding significance of the protection of life for her party.

If there will be a change for §219a StGB will be seen in the future since discussions about it have already started in the German parliament.