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"It's Time to Revise the Legislation on Abortions!"

The deletion of §219a of the German Criminal Code should only be the first step of a comprehensive legal reform


Photo: Jim Pfeffer /

This Thursday, the German parliament will debate the abolition of the criminal offence known as "advertising for abortion" (§ 219a StGB). The Giordano Bruno Stiftung would much appreciate, "if this old clause from the Nazi era were to fall," says gbs spokesman Michael Schmidt-Salomon. "But this deletion alone would not eliminate the ideological imbalance in the legislation. Unfortunately, the laws on abortion in their entirety are neither rational nor evidence-based nor ideologically neutral. It is time to revise them fundamentally."

According to Schmidt-Salomon, the imbalance of the laws is particularly evident in the provisions on so-called "pregnancy conflict counselling", which is regulated by § 219 StGB. It states that the woman must be aware "that the unborn child has its own right to life at every stage of the pregnancy and therefore, according to the legal system, that an abortion may only be considered in exceptional situations - if the woman, as a result of carrying the child, has to bear a burden which is so severe and extraordinary that it exceeds the reasonable sacrifice limit" (§ 219, subsec. 1, sentence 3, German Criminal Code).

Schmidt-Salomon is particularly opposed to the phrase that the unborn has a "right to life at every stage of pregnancy": "From a critical-rational perspective, this sentence is utter nonsense, since the right to life presupposes a corresponding interest in life, which by definition is not the case with an embryo that is incapable of consciousness and is completely without feelings. Not until the 20th week of pregnancy does the development of the cerebral cortex begin, which later allows the fetus to consciously feel and store first experiences. That there is legally no distinction in §219 StGB between sensation-free embryos and developed foetuses is only possible on the basis of highly obscure religious premises, which a worldview neutral state must never impose on its citizens".

The religious backgrounds of German legislation

According to Schmidt-Salomon, the peculiar idea of granting a "right to life" even to sensation-free cell formations and demanding a "reasonable sacrifice" from pregnant women on the basis of this "right" is based on the concept of "simultaneous inspiration", the supposed "casting of the spirit at the moment of fertilisation". Many consider this idea to be "Original Christian" - but in fact it is binding for Catholics only since the second half of the 19th century: "Many theologians, bishops and popes before had assumed the alternative conception of 'successive inspiration', according to which the 'soul' of a human being is fully developed only at the end of the third month of pregnancy, so that abortions up to this point could be religiously legitimised. But then in 1854, Pope Pius IX proclaimed the dogma of the 'Immaculate Conception of Mary'. Obviously, in the following years, he suffered greatly from the thought that the Mother of God, who was supposedly 'received without sin', could ever have been 'matter without reason or soul'. Therefore, in 1869 in honour of the 'Holy Virgin Mary', Pius IX elevated 'simultaneous inspiration' to a binding 'truth of faith' - a decision that could be dismissed today with a smile if it did not still define the laws of the secular state".

The religiously charged argumentation seems particularly absurd if we consider "that about half of the embryos which implant in the uterus spontaneously disappear again, which is only noticed in about 20 percent of the cases," says Schmidt-Salomon: "Despite the frequency of the natural abortion and the logical contortions that Christian 'life-protectors' have to undergo because of this fact (wouldn't the 'Good Lord' then be the 'greatest abortion physician of all time'?), the German legislator forbids artificial abortion with the help of § 218 StGB."

Although Article 218a of the Criminal Code declares that under certain conditions abortion is exempt from punishment, this does not change that the state, on the basis of traditional religious ideas, presumes to appeal to women's consciences (Article 219 of the Criminal Code) and to deny them free access to relevant information (Article 219a of the Criminal Code). This cannot be reconciled with the principle of ideological neutrality under any circumstances".

Religious chicanery

Regarding the current debate on the abolition of the criminal offence concerning "advertising for abortion", Schmidt-Salomon refers to the relevant commentary by the Institut für Weltanschauungsrecht (ifw - Institute for Secular Law) published in November 2017 and takes a very clear position himself: "Of course the provision of information on abortion must never be seen as an offence. On the contrary: The concealment of such information would have to be evaluated as a violation of the medical duty to inform (§ 630c, subsec. 1, German Civil Code)! In addition, the German state must now finally ensure the presence of clinics in rural areas that carry out abortions. The current situation, in which women often have to travel 100 kilometres to find an eligible clinic, is religious chicanery and can no longer be tolerated in an ideologically neutral state."