German Federal Constitutional Court abortion decision
Encyclopedia
The Federal Constitutional Court of Germany
first addressed the issue of abortion
in 1975, two years after Roe v. Wade
, in a decision reported at BVerfGE 39,1, holding that respect for human dignity requires the criminalization of abortion if it is not justified by imperative reasons called "Indikationen". There are several "Indikationen", most notably the medical "Indikation", meaning that the life of the mother would be at risk if she had to carry the child to term, and the criminal "Indikation", meaning that the child is the result of the mother being raped.
The decision considered the full range of arguments for abortion, both early (legalization had been a topic of debate in Germany since the turn of the century) and recent (used in other countries such as the United States
and Britain
that legalized abortion several years before). In particular, it specifically rejected the main points of reasoning in Roe v. Wade as well as its "term solution" as inconsistent with the constitutional guarantee of the right to life.
The Court held that Article 2, Paragraph 2 of the Basic Law for the Federal Republic of Germany
's guarantee that "Everyone has the right to life", read in light of Article 1's guarantee of human dignity, must extend to the life of the unborn.
The reunification of Germany
resulted in a significant revision of abortion laws, which liberalized them in many respects, although leaving them more restrictive than the East German
laws which permitted abortion upon demand during the first twelve weeks of pregnancy.In the early 1990s, the German legislature (Bundestag) implemented a system where a woman having an abortion during the first three months of her pregnancy does not face legal sanctions if she undergoes mandatory counseling which has as one of its goals to present the case that the developing fetus is an independent human life, and obeys a 72 hour waiting period between counseling and the abortion. Later abortions are not punishable if medical reasons, such as possible harm to the woman from continued pregnancy, or a severely deformed fetus, indicate so.
In a second judgment in 1992, the Federal Constitutional Court upheld these relaxed restrictions on abortion, although an abortion in the absence of an "Indikation" was declared illegal. Despite this finding of illegality, the decision does not make all abortions punishable, however, because the Court no longer considered that respect for human dignity requires the criminalization of abortion. In particular, the Court held that the state has a duty to use "social, political, and welfare means" to foster developing human life, and that these are preferable to penal measures (though the latter are not ruled out). In general abortions without an "Indikation" are therefore illegal, but not punishable – i.e. they are de facto legal in Germany.
Federal Constitutional Court of Germany
The Federal Constitutional Court is a special court established by the Grundgesetz, the German basic law...
first addressed the issue of abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
in 1975, two years after Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
, in a decision reported at BVerfGE 39,1, holding that respect for human dignity requires the criminalization of abortion if it is not justified by imperative reasons called "Indikationen". There are several "Indikationen", most notably the medical "Indikation", meaning that the life of the mother would be at risk if she had to carry the child to term, and the criminal "Indikation", meaning that the child is the result of the mother being raped.
The decision considered the full range of arguments for abortion, both early (legalization had been a topic of debate in Germany since the turn of the century) and recent (used in other countries such as the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
that legalized abortion several years before). In particular, it specifically rejected the main points of reasoning in Roe v. Wade as well as its "term solution" as inconsistent with the constitutional guarantee of the right to life.
The Court held that Article 2, Paragraph 2 of the Basic Law for the Federal Republic of Germany
Basic Law for the Federal Republic of Germany
The Basic Law for the Federal Republic of Germany is the constitution of Germany. It was formally approved on 8 May 1949, and, with the signature of the Allies of World War II on 12 May, came into effect on 23 May, as the constitution of those states of West Germany that were initially included...
's guarantee that "Everyone has the right to life", read in light of Article 1's guarantee of human dignity, must extend to the life of the unborn.
The reunification of Germany
German reunification
German reunification was the process in 1990 in which the German Democratic Republic joined the Federal Republic of Germany , and when Berlin reunited into a single city, as provided by its then Grundgesetz constitution Article 23. The start of this process is commonly referred by Germans as die...
resulted in a significant revision of abortion laws, which liberalized them in many respects, although leaving them more restrictive than the East German
German Democratic Republic
The German Democratic Republic , informally called East Germany by West Germany and other countries, was a socialist state established in 1949 in the Soviet zone of occupied Germany, including East Berlin of the Allied-occupied capital city...
laws which permitted abortion upon demand during the first twelve weeks of pregnancy.In the early 1990s, the German legislature (Bundestag) implemented a system where a woman having an abortion during the first three months of her pregnancy does not face legal sanctions if she undergoes mandatory counseling which has as one of its goals to present the case that the developing fetus is an independent human life, and obeys a 72 hour waiting period between counseling and the abortion. Later abortions are not punishable if medical reasons, such as possible harm to the woman from continued pregnancy, or a severely deformed fetus, indicate so.
In a second judgment in 1992, the Federal Constitutional Court upheld these relaxed restrictions on abortion, although an abortion in the absence of an "Indikation" was declared illegal. Despite this finding of illegality, the decision does not make all abortions punishable, however, because the Court no longer considered that respect for human dignity requires the criminalization of abortion. In particular, the Court held that the state has a duty to use "social, political, and welfare means" to foster developing human life, and that these are preferable to penal measures (though the latter are not ruled out). In general abortions without an "Indikation" are therefore illegal, but not punishable – i.e. they are de facto legal in Germany.