Weichenstellungen in Karlsruhe - Die deutsche Reform des Abtreibungsrechts

Who can talk about abortion? Information, offence, freedom of speech, and the advertising ban in Germany

“…1 Rather unusually, this protectable good was said to trump the rights of actually existing subjects (i.e. women) (Berghahn, 2014: 174). As a result, the decision on whether abortion was permissible was placed in the hands of doctors, who had to decide if one of a number of indications applied.…”

“…The Federal Constitutional Court in Karlsruhe ruled against several aspects of the law in 1993, demanded tighter regulations on the consultations, and, most importantly, classified abortion as straflos (without punishment) rather than nicht rechtswidrig (not contrary to law). These changes were largely put into law in 1995 (Berghahn, 2014: 164). The result is a law principally designed to discourage abortions, while allowing them in certain conditions.…”

“…It is worth noting that in 1993 the court went further than in 1975 in declaring foetuses to be not just a protectable good but the bearers of individual rights (including the basic rights to life and human dignity). This move made the condemning of abortion more plausible, but was contradictory, given that the verdict simultaneously allowed for the contravention of these rights by making abortion unpunishable in certain cases (Berghahn, 2014: 175). Also noteworthy is that the idea that embryos constitute individual life from conception is stated as a biological fact, rather than as a matter of belief – in fact, the court asserts that neutrality demands that this matter be decided without reference to a particular philosophical worldview (Berghahn, 2014: 177–179).…”

“…This move made the condemning of abortion more plausible, but was contradictory, given that the verdict simultaneously allowed for the contravention of these rights by making abortion unpunishable in certain cases (Berghahn, 2014: 175). Also noteworthy is that the idea that embryos constitute individual life from conception is stated as a biological fact, rather than as a matter of belief – in fact, the court asserts that neutrality demands that this matter be decided without reference to a particular philosophical worldview (Berghahn, 2014: 177–179). However, claim to neutrality notwithstanding, the moment that a life becomes a life is a deeply contested matter and clearly the assertion that life begins at conception does rely on a particular worldview – it happens to be one that matches that of the Catholic Church (the Lutheran Church, while historically also expressing opposition to abortion law reform, did not do so as vehemently and did not push this view of life in the same way, see Tichenor, 2014: 616, 622).…”

“… 1. The court referenced the crimes of Nazism as a reason for the need to afford the highest protections to life and potential life – but the comparison is misleading in so far as Nazi-era abortion law for Aryan women was even stricter, and cases of forced sterilisation and abortion were precisely forced, and as such not really comparable to voluntary abortions (Berghahn, 2014: 176). …”