"A regulation on abortion outside of the German Criminal Code is constitutionally permissible, if not constitutionally required." This is the conclusion reached by the Institut für Weltanschauungsrecht (ifw, Institute for Secular Law) in its statement, which was submitted to the "Commission for Reproductive Self-Determination and Reproductive Medicine" last week.
In March 2023, the Federal Government set up the "Kommission für reproduktive Selbstbestimmung und Fortpflanzungsmedizin" (Commission for Reproductive Self-Determination and Reproductive Medicine) to address the question of whether and under what conditions it is possible to regulate abortion outside of the German Criminal Code. To clarify this question, the commission invited various specialist organizations to submit statements, including the Institute for Secular Law (ifw), which was founded by the Giordano Bruno Foundation in 2017.
In its statement, the ifw advocates "the complete legalization of self-determined abortion, i.e. without any time limits, and the deletion of Sections 218 et seq. of the German Criminal Code". In the future, abortion performed against or without the will of the pregnant woman is to be criminalized in a new Section 226b of the German Criminal Code (StGB). The basis of the ifw's argument is the constitutive principle of a liberal constitutional state that in an "open society, it is not freedom that requires justification, but any restriction of freedom". However, neither the legislator nor the Federal Constitutional Court have provided legally tenable reasons for restricting the right to self-determination of unintentionally pregnant women, as the ifw explains in its statement.
The current regulation: unconstitutional and contradictory
In this context, the Institute is particularly critical of the "misconception of an alleged protection of basic rights of the embryo or fetus, which cannot be derived exegetically from either the Basic Law or the legal materials." This argument is underpinned by a reference to Article 1 of the "Universal Declaration of Human Rights", which explicitly states "that all human beings are 'born free and equal in dignity and rights' – not conceived or conceiving." The first paragraph of the German Civil Code (BGB), which states that a person's legal capacity begins at birth, also points in this direction. According to the ifw, "it would lead to the legally inconsistent construct of a 'basic right holder without legal capacity' if the Basic Law were to draw a different line than the Civil Code".
The current regulations on abortion are contradictory as it stands: "Counselled abortion is supposed to be unlawful under Section 218a para. 1 StGB in any case, as it allegedly involves the intentional killing of a fundamental right holder, but at the same time, according to the Federal Constitutional Court, it is considered a constitutional 'state obligation' to create suitable conditions for women to be able to commit such 'unlawful acts' without danger – which means nothing other than that the state is 'legally obliged to act unlawfully'." Even more problematic is the unconstitutional "devaluation of women's basic rights" that goes hand in hand with the legally unfounded "elevation of the status of blastocysts, embryos and fetuses". Specifically, these are "violations of Art. 1 para. 1 of the German Constitution (human dignity) in conjunction with Art. 2 para. 1 and 2 of the German Constitution (free development of the personality and prohibition of bodily harm) and Art. 3 para. 1-3 of the German Constitution (equality before the law, equality of men and women, prohibition of discrimination on the basis of religious/ideological and political views)".
The case for a constitutional, judicially logical regulation
According to the ifw, these constitutional violations and the inconsistencies associated with them can only be overcome if we recognize "that blastocysts, embryos and foetuses cannot hold fundamental rights on the basis of the current legal system." This does not mean that developed foetuses should not be afforded any protection: "Developed foetuses have no interest in survival, but they do have an interest in not suffering pain. Under professional law, doctors should therefore be required to use suitable methods to take into account the sensitivity to pain of the developed fetus in the rare case of an abortion after the first trimester."
In its statement, the ifw also briefly comments on measures that should accompany a new regulation of abortion. For example, the "current obligation to provide counseling" should be replaced by a "low-threshold counseling service" where it can be pointed out "that abortions should take place at the earliest possible stage in order to spare the developed fetus suffering." The ifw also considers the inclusion of abortion in medical training, the assumption of the costs of an abortion by the statutory health insurance funds, and the abolition of the cooperative right of refusal for (denominational) hospitals in the statutory health insurance system to be sensible. The ifw regards such measures, which have also been pointed out by the German Women Lawyers Association, as not only "legally imperative, but also practically necessary in order to improve the ever worsening care situation for women with unintended pregnancies in Germany."
The ifw statement on the new regulation of abortion compiled by Jessica Hamed, Jörg Scheinfeld, and Michael Schmidt-Salomon can be downloaded from the website of the Institute for Secular Law. As part of the constitutional complaint filed by Giessen doctor Kristina Hänel, gbs chairman Michael Schmidt-Salomon had already submitted a detailed critical statement on the current regulations on abortion in 2022.