The media praised yesterday's draft bill to reform the controversial § 219a StGB as a success. In fact, however, it is a transparent tactical maneuver to defuse the street protests and preserve the outdated German legislation on abortion, which stands in diametrical opposition to the constitutional requirement of worldview neutrality. A commentary by Michael Schmidt-Salomon.

After the Giessen physician Kristina Hänel was sentenced for violating § 219a StGB (German Criminal Code), thousands of people all over Germany took to the streets to demonstrate against the legal regulations on abortion. In the meantime there is much more at stake than just § 219a, which forbids medical doctors to mention their abortion services on their own website. The overall concept of the German legislation on abortion (§§ 218 – 219b StGB) is at stake! In order to take the momentum out of the protest movement, the federal government has once again presented a foul compromise.

The draft bill presented yesterday, Monday, provides for the addition of a further exception to § 219a StGB in a new paragraph 4. According to this, "doctors, hospitals and facilities may in future also publicly inform without risk of prosecution that they are performing abortions. In addition, they shall be allowed to provide further information about an abortion by referring - in particular by including a link on their website - to the relevant information offered by neutral authorities which are explicitly named in the law."

For Kristina Hänel this "reform" would be a Pyrrhic victory, because her homepage, on which she informed about abortion and the methods of her practice in a serious way, would probably continue to be prohibited. (It would only be possible for her to refer to "appropriate information services of neutral authorities" - whatever this may be!) Otherwise, everything would stay the same: Abortion would continue to be regarded "unlawful", which would discourage many physicians from practising in this field. And the women concerned would have to continue to undergo compulsory counselling, the focus of which would be on "protecting the unborn child", in order to escape prosecution. This interference in women's rights to self-determination would continue to be legitimized by the "prevailing legal opinion" (rulings of the Federal Constitutional Court in the 1970s and 1990s) that the embryo already possesses "human dignity", whose supposed "fundamental rights" would have to be weighed against women's self-determination rights.

A violation of the constitutional requirement of worldview neutrality

It is worth noting that the responsible politicians are scrupulously avoiding the crucial question that emerges in this context, i. e. the question of what the supposed "human dignity" of the embryo can be based on in the first place. References to Article 1 of the German Basic Law, "Human dignity is inviolable", do not provide this. On the contrary! For the human "inviolable dignity" is linked to "inviolable and inalienable human rights". However, Article 1 of the Declaration of Human Rights states clearly and distinctly that all human beings are born with equal dignity and equal rights - with good reason it does not say that they were conceived with equal dignity and equal rights!

If we look for the actual source for the strange German legislation on abortion and embryo protection, we do not find the UN Declaration of Human Rights, but one of its greatest despisers, Pope Pius IX. This pontiff, known as particularly backward, had turned the concept of "simultaneous animation" (animation, or "ensoulment" at the moment the egg is fertilized) into an unquestionable "truth of faith" in 1869. Previously, Catholics frequently assumed the alternative concept of "successive animation", which means that the "soul" begins developing in the first three months of pregnancy, allowing abortions up to this point.

Theologically the decision of the Pope was justified by a particularly obscure dogma, which he had already issued 15 years before, i. e. the "dogma of the Immaculate Conception of Mary", according to which not only the "Saviour" but also his mother was conceived "free from original sin". After the proclamation of this dogma in 1854, Pius IX obviously suffered very much from the thought that the Mother of God who was conceived "without sin" might have been "matter without reason and soul" in the first three months of pregnancy according to the concept of "successive animation". So in 1869, in honour of the "Holy Virgin", he proclaimed "simultaneous animation" to be the binding "truth of faith" - a farce about which we could smile if it did not still determine the laws of the supposedly "secular state" today!

By making the Catholic religious dogma of "simultaneous animation" (albeit in a slightly weakened form) the general legal norm (namely in Sections 218-219a of the German Criminal Code, which govern abortion), the German legislature palpably violates the constitutional requirement of worldview neutrality. It privileges people who agree with the guidelines of the official Catholic Church (undoubtedly only a small subset of church members) and discriminates against all those who do not share these convictions - not only the many people who reject religious concepts per se, but also, for example, believing Jews (for whom human life only begins with birth) or Muslims (for whom the fetus is "animated" only from the 120th day of pregnancy).

The protests should continue

What should legislation look like instead that meets the basic requirements of a rational, evidence-based, worldview neutral justification? Well, first of all it should acknowledge the empirical facts relevant to the ethical and legal assessment of abortion. The following two points, among others, are particularly interesting:

1. It has been proven that about half of the fertilized ovules spontaneously cease again, which is only noticed in about 20 percent of all cases. In view of this frequency of natural abortion it is downright absurd that the legislator dramatizes the consequences of artificial abortion, i.e. those performed by medical doctors, in such a way that it demands a "reasonable sacrificial limit" (§ 219 StGB) from the women concerned! (Incidentally, this empirical fact also troubles the followers of "simultaneous animation": after all, why should "God" breathe an "eternal soul" into every embryo - and shortly after take it again from half of them? Is the "Almighty" confused or does he even "enjoy" abortions?)
2. Embryos are proven not to have personal qualities (e.g. ego-consciousness), they are not even capable of suffering and therefore have no interests that could, in a conflict, be considered ethically or even legally. The development of the cerebral cortex does not begin until the 20th week of pregnancy, so that at a certain stage of development of the fetus (not the embryo!) we are dealing with a sentient living being whose "interests" can be taken into consideration when weighing the various goods.

From this it can be concluded that the legislator can indeed decree with rational, evidence-based, worldview neutral reasons that late abortions are only permissible in exceptional cases in order to spare developed fetuses from suffering. Such reasons do not exist, however, when the state grants embryos that are incapable of consciousness and sentience "their own right to life" and pits this alleged "right" against women's self-determination rights! Therefore, the currently applicable provisions on abortion in Germany are clearly unconstitutional - even though the Federal Constitutional Court was so strongly pressured by Catholic lobbyists in the 1970s and 1990s that it was unable or unwilling to recognize this clear constitutional breach as such! Thus, if inadvertently pregnant women continue to be forced to undergo compulsory counselling, if it remains the case that abortion is classified as "illegal in principle", then this is nothing other than religious harassment, which is strictly forbidden to the democratic constitutional state!

Conclusion: The protests against the German regulations on abortion should absolutely continue - all the more so after disclosure of this draft, which in reality is only a transparent tactical manoeuvre to maintain an outdated, unconstitutional legislation!

• On the legal-philosophical background see the essay "The Blind Spot of the German Legal System"
• German Interview with Michael Schmidt-Salomon on §219a StGB (programme "Politikum", WDR5 01/28/2019)