Abortion law in Germany: The long dispute over paragraph 218

The Supreme Court’s abortion ruling is making waves in the US and internationally. The decisions of the Federal Constitutional Court also play a central role in Germany.

Karlsruhe on the morning of February 25, 1975: around 1,000 police officers secure a restricted area around the Federal Constitutional Court in the palace district. Thousands of people demonstrate in downtown Karlsruhe, the mood is heated. At 11 a.m. the verdict on the reform of the abortion law is to be announced.

The fact that Karlsruhe would overturn the liberalization that had been decided had been leaked out for a long time. A good week later, an explosive device is detonated in the courthouse, and some windows are broken. An unknown group “women of the revolutionary cell” admits to it.

Germany is discussing the taboo subject

A good three years earlier, on June 6, 1971, the magazine “Stern” was published in Germany with the title “We have aborted”. 374 women are named. Many of them can even be seen with a photo on the title picture. The action is considered the beginning of a women’s movement for the liberalization of abortion rights.

Suddenly the taboo subject is being discussed in Germany. In 1974, the Bundestag, under the social-liberal coalition of Chancellor Willy Brandt, decided with a narrow majority to reform paragraph 218. The so-called deadline solution was introduced. An abortion should remain unpunished in the first twelve weeks of pregnancy.

Bundestag implements tightening

In February 1975, the judgment of the Federal Constitutional Court followed. The first senate of the court under President Ernst Benda overturns the liberalization attempt. The new regulation violates the constitution. According to the Basic Law, the state has a duty to protect human life. And that also applies to the still unborn, developing life.

An abortion should therefore only go unpunished if the continuation of the pregnancy is unreasonable. In 1976, the German Bundestag implemented the ruling and tightened paragraph 218 again. There is no longer a time limit. Under certain conditions, however, the termination of pregnancy remains legal: For example, if there is a medical or social emergency, or after a rape.

Dissent in the judges’ college

At that time there was also clear criticism from the court itself. In their dissenting opinion, the judges Waltraut Rupp-von Brünneck and the judge Helmut Simon wrote that the decision turned the function of fundamental rights into their opposite.

The task of the court is to examine whether the state can punish something and not whether it has to punish something. Another constitutional judge left the room in protest while the dissenting opinion was read out.

Advice becomes mandatory in 1992

With reunification in 1990, the discussion about Section 218 of the Criminal Code flared up again. Because in the new federal states, GDR law still applies. And since 1972 there has been a time limit. In the first twelve weeks, women are free to decide whether to have an abortion.

However, the Unification Treaty prescribes a new all-German arrangement. Once again, many are campaigning for the decriminalization of abortion with the “My belly belongs to me” campaign.

In 1992, the Bundestag passed a reform. A combination of “deadline solution” and “consulting solution”. Mandatory counseling is introduced. After the consultation, abortion should remain unpunished in the first twelve weeks of pregnancy. The intervention is then not illegal. The health insurance companies should also cover the costs in these cases.

Karlsruhe intervenes again

This reform also ends up in Karlsruhe. In 1993 the second major verdict on paragraph 218 was passed. Again the judges overturned the legislature’s model. The Basic Law obliges the state to protect unborn life. This requires that abortion continue to be fundamentally wrong and prohibited.

After a consultation, the demolition may remain “unpunished” for the first twelve weeks, but must continue to be considered “illegal”, i.e. a violation of the legal system. This is the only way that women in counseling are made aware that in principle they have a legal obligation to carry the child to term. In principle, there should also be no assumption of costs by health insurance companies for illegal interventions. In 1995, the legislature implemented the guidelines from Karlsruhe.

Unlawful but not punishable

This modified advisory solution is still valid in Germany today. Women who want to terminate the pregnancy in the first twelve weeks must go to a recognized counseling center beforehand. After the consultation, they must observe a “deliberation period” of three days.

If the requirements are met, the abortion remains unlawful, but not punishable. In addition, abortion is legal if there are specific medical reasons for doing so or if the child was born as a result of rape.