Germany’s Abortion Regulation: A Relic of the Past?
The German Regulation in Comparison to International Legislation
As countries around the world make strides in securing abortion rights, Germany’s abortion law remains a relic of the past. Is it time to abolish these outdated regulations and to enshrine the right to abortion in law? This post calls for a progressive reform in support of reproductive rights.
In Germany, there is a renewed debate about whether Section 218 of the Criminal Code, criminalizing abortion, should be abolished. This debate is a response to a recently published government report, which had given this recommendation.
Currently, Section 218 of the Criminal Code criminalizes abortion, allowing it only under strictly defined exceptional circumstances. Under Section 218a, there is no punishment for abortions within the first 12 weeks of conception, after mandatory counseling, and if performed by a physician. Exceptions also include cases where the pregnancy endangers the woman’s life or could cause serious physical or mental harm, or if the pregnancy results from sexual assault, coercion, or rape. Although this means many abortions are not punishable, the regulation stigmatizes women and doctors who undergo or perform such procedures (Report, pp. 132 ff.) and because of the criminalization the German health insurance do not, in principle, cover the costs of the procedure (Report, pp. 73). This regulation has been in place since a 1993 decision by the Federal Constitutional Court, which ruled that granting a right to abortion is unconstitutional. Though decisions of the Federal Constitutional Court are binding, the Court considers it possible for the legislature to re-enact a law that is identical or similar in content, when taking into account changed societal or legal circumstances (BVerfGE 77, 84, para. 74) It seems plausible that the Court would consider such altered circumstances, particularly given the international developments outlined below (diff. Leutheusser-Schnarrenberger).
In the context of this debate, the question arises whether Germany should not only abolish Section 218 but establish a codified right to abortion. One could argue that sufficient protection already exists after decriminalization through other rights, such as the right to personal integrity. Conversely, enacting such a right would allow individuals to access services without unnecessary barriers and this would be safeguarded even amid changing political climates. The consequences of a non-codified right were seen recently in the USA, where the Supreme Court just overturned a judicially granted right to abortion. Therefore, this article advocates for the establishment of an independent, codified right to abortion, as it is the only way to ensure strong legal guarantees and protection. This discussion leads to the following question: Can a comparison to other legal systems support the argument that Germany should not only abolish Section 218, but codify a right to abortion?
An International Right to Abortion?
When examining the general human rights treaties at the international level, specifically the International Covenant on Civil and Political Rights (ICCPR) and the three human rights conventions in Africa, America, and Europe, it becomes evident that none of these treaties even mention a right to abortion. This can be attributed to the fact that these treaties were developed between 1950 and 1986, a period when the prevailing belief was that a right to abortion should not be granted, particularly due to the dominant influence of religious beliefs (Berer, p. 14). Additionally, general human rights treaties aim for broad acceptance by states, often excluding controversial topics like abortion rights and establishing only a “minimal consensus”.
Alongside these general human rights treaties, there are more specific women’s rights treaties at the international level, such as the CEDAW, the Council of Europe’s Istanbul-Convention, the American Belém do Pará-Convention and the African Maputo-Protocol. The first three treaties also do not include a right to abortion. For the CEDAW, the same explanation as for the general human rights treaties might hold true. For the American and European women’s rights treaties, the explanation lies in the fact that these treaties are limited to protecting women from violence. In contrast, the Maputo-Protocol is the only treaty that includes guarantees against discrimination and protections for women in various aspects of life. This may explain why Article 14(2)(c) of the protocol implies, at a minimum, a limited right to abortion in cases of sexual assault, rape, incest, and when the continuation of the pregnancy endangers the mental or physical health of the mother or the life of the mother or fetus (cf. General Comment, p. 10). In addition, the Maputo Protocol is a response to comprehensive women’s rights challenges. It was created under the strong influence of NGOs and international developments, explaining why the set of rights is very progressive and often more comprehensive than those in America, Europe or internationally. (Rudman, et al., pp. 3 ff.).
Considering not only the regional human rights documents, but also the case law, it becomes clear that the European Court of Human Rights is very cautious on politically sensitive issues and gives the Member States a wide margin of appreciation. This margin in context of abortions is not considered exceeded even in the case of a complete abortion ban (ECtHR, A, B, and C v. Ireland, para. 241). Conversely, the Inter-American Court of Human Rights (IACtHR) may be on the verge to adopt a more progressive approach. In the first case (Manuela v. El Salvador), which did not directly address abortion but was related to the state’s abortion laws, the IACtHR took initial steps in this direction, but remained very cautious overall (cf. Bilke et al.). However, the court noted that the state should “refrain from applying the current laws concerning the obligation of medical personnel to report possible cases of abortion” (para. 286). A second case, Beatriz v. El Salvador, is still pending. This case involves a woman pregnant with a non-viable fetus whose pregnancy threatened her life. Instead of obtaining an abortion, she was forced to undergo a cesarean section due to El Salvador’s absolute abortion ban. This case provides the IACtHR with an opportunity to make a landmark decision on the right to abortion under certain circumstances. It is hoped that such a progressive decision will be taken (cf. Ebbers).
Beyond that, statements and general comments from human rights committees have influenced the development of the right to abortion, although these statements do not demand an independent right. In 2018, the CEDAW committee investigated the United Kingdom and Northern Ireland for its strict abortion regulations. This resulted in the recommendation of the systematic decriminalization of abortion in all cases (para. 58). Additionally, the UN Human Rights Committee adopted a General Comment on the Right to Life in 2018, emphasizing that legal access to abortion must be ensured at least when “the life and health of the pregnant woman or girl are at risk, or when carrying the pregnancy to term would cause the woman or girl severe pain or suffering” (para. 8). Concerns about Germany’s current regulation have also been noted by these committees, especially the obligation to undergo mandatory counselling to avoid punishment (e.g. Concluding observations, para. 45 (d)). Furthermore, the African Commission on Human and Peoples’ Rights has developed a General Comment urging states with restrictive abortion laws to reform their laws and ensure safe access to abortion (paras. 20 ff.).
A National Right to Abortion?
There are still 16 countries worldwide that prohibit abortion under all circumstances. These countries are distributed across the globe. Four countries have seen regressive developments in recent years, increasingly restricting abortions. In a landmark decision on June 24, 2022, Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overturned the 1973 Roe v. Wade judgement, which had established a judicial right to abortion. The Court argued that a right to abortion cannot be derived from the text or history of the Constitution. Furthermore, the Court stated it was not bound by the Roe v. Wade decision because it was egregiously wrong. As a result, the regulation of abortion is now determined at the state level, which is often enacted conservatively. In states like Texas and Georgia for instance, abortions are now prohibited once a fetal heartbeat can be detected, typically around the sixth week of pregnancy, often before many women know they are pregnant. Besides, several countries maintain abortion regulations similar to Germany’s. For instance, Poland criminalizes abortion, allowing it only under very restrictive conditions, which are even more stringent than those in Germany (Art. 152, 157a Criminal Code Poland).
Despite these regressive developments and restrictions, progressive trends remain dominant on a global scale. At the national level, more than 60 countries have liberalized their abortion laws in the past 30 years. The various achievements of abortions rights in Latin America, driven by the strong women’s rights movements there, are particularly noteworthy. Uruguay has decriminalized abortion in recent years. Furthermore, the Mexican Supreme Court in 2023 and the Colombian Constitutional Court in 2022 declared abortion bans unconstitutional, stating that they violate women’s human rights. Beyond that Argentina has granted a right to abortion in recent years, allowing abortion within the first 12 or 14 weeks of pregnancy. In Europe, the strictest abortion law, previously in force in Ireland, was changed in 2018, now granting the right to abortion. Notably, France introduced the first explicit constitutional guarantee of the right to abortion in March 2024. Even if the enshrinement in the constitution has been criticized, it will be more difficult to repeal the right in the future and it sends a global signal for the recognition of reproductive rights (Bottini et al.). Progressive developments were also reported in African and Asian countries, most recently in Mozambique and in Thailand.
Conclusion
Global, regional, and national developments indicate a shift towards decriminalizing and beyond that granting a right to abortion. Particularly noteworthy is the regulation within the African human rights system and various developments at the national level. These regional human rights developments can be significant not only within their respective regions but could also stimulate an international human rights evolution and potentially pressure other countries or regions to undergo similar developments.
Above all, Germany’s regulation under Section 218 of the Criminal Code is non-progressive. Germany not only fails to recognize the right to abortion, but criminalizes abortion, only allowing impunity in narrow exceptional cases. It thus opposes the international trend towards decriminalization and the increasing granting of a right to abortion.
Even though there is a concern that overly progressive developments might lead to much more conservative regulations in the future, resulting in regression rather than progress, the recently established rights to abortion, nationally and internationally, indicate that such a risk does not seem imminent, as no subsequent regressions have occurred so far. This fear risks hindering progress and leading to legal stagnation, which is less desirable than taking the chance on progressive advancements.
Instead of continuing to ignore international developments, it seems more than necessary based on this comparison for Germany to finally abolish the outdated Section 218 of the Criminal Code and beyond that to codify a right to abortion. The latter, in particular, could send a global signal in favor of the progressive advancement of reproductive rights and would therefore be highly desirable.
Hanna Welte is a doctoral candidate and research associate at the University of Munich. Her research focuses on human rights law, in particular women’s rights in regional human rights systems.