Pregnancy termination is still a criminal offence in Germany under section 218 of the Criminal Code, with serious consequences for access to abortion and women’s right to self-determination. There can only be one answer to this.
It may surprise some people to learn that abortion has not yet been legalised in Germany. According to section 218 of the German Criminal Code, pregnancy termination is against the law, with those who undergo abortions as well as the doctors who perform them risking imprisonment. An exception is made for first-trimester abortions, but only on the condition that a compulsory counselling session is attended, followed by the observation of a three-day waiting period between this session and the termination.
Section 218 is therefore often referred to as a reasonable compromise. In reality, however, it is the decisive cause of poor medical care. Even if the conditions for legal abortion (i.e. the obligatory counselling session and waiting period) are met, it remains that doctors are carrying out a procedure that is fundamentally unlawful. This places an enormous administrative and financial burden on healthcare practitioners. As a result, fewer and fewer practices are performing abortions. For those affected, this causes considerable stress and can lead to unnecessary health risks.
Far-from-adequate medical care
The precarity of the situation becomes clear when we look at the map of facilities providing abortion care published on the website of the German Medical Association. There are huge gaps in provision, particularly in Bavaria. Outside of Munich, there are only a handful of clinics and practices. Nuremberg, Würzburg, and Regensburg are entirely unserved. There is a lack of care elsewhere, too – in Freiburg, Koblenz, Göttingen, Paderborn, and Oldenburg. What is more, the remaining practices and doctors are being targeted by so-called “pro-lifers” – a downward spiral.
These figures make it plain that the reproductive rights of women and queer people – that is, the right to make autonomous decisions about sexuality, contraception, and parenthood – are of no importance within section 218.
Both the European Parliament and the World Health Organization have called to improve legal regulation of abortion. The fact is that, while some 50 countries around the world have introduced reforms to legalise early-stage abortions and protect reproductive rights over the past 30 years, Germany is lagging behind. To change this, one step is crucial: legalisation.
Danger from authoritarian populist parties
A further argument in favour of rapid legalisation is the increasing influence of right-wing extremist and authoritarian populist parties keen to further restrict reproductive rights. This has become a real danger in Germany, particularly since the AfD’s electoral successes in Saxony, Thuringia, and Brandenburg. As the financing of pregnancy advice centres is a Land-level responsibility, an AfD-led regional health ministry could further restrict or even prevent access to compulsory counselling – and thus to legal abortion – by cutting funding. Legalising abortion would undermine this strategy and prevent the erosion of reproductive rights.
Health insurance funds (Krankenkassen) must also be called to account
In Germany, around 100,000 pregnancies are terminated each year – the majority (around 96 per cent) in the first twelve weeks. At this stage, abortions can usually be performed with medication and without risk of major complications. At an absolute minimum, abortions performed during this period should be legalised. In addition, access to contraceptives via the country’s statutory health insurance funds should be better regulated, while abortions should be included in the procedures covered by these funds.
This was also the conclusion reached in April by the Commission on Reproductive Self-Determination and Reproductive Medicine, set up by the German federal government in March 2023. According to the commission, the decision in favour of a pregnancy and to become a parent is so far reaching and has such a significant impact that it can only be made by pregnant women themselves. As criminal law expert and commission member Professor Liane Wörner argued in the most recent episode of our podcast Über den Tag hinaus [Beyond today], the state should not force this life-changing decision on them. Professor Wörner even considers the current regulation to be constitutionally questionable as it discriminates against women. Indeed, there is no law that similarly interferes with men’s right to self-determination.
Clear mandate for the federal government
Established by federal ministers Lisa Paus (Alliance 90/The Greens), Marco Buschmann (FDP), and Karl Lauterbach (SPD), the commission brought together doctors, ethicists, and lawyers from across the political spectrum. The issue was not taken lightly, nor did the commission’s experts call for complete freedom from regulation. Rather, its final report presents concrete, non-partisan, interdisciplinary, and science-based recommendations that are supported by more than 80 per cent of the population. Ignoring these would be disastrous, both for the situation of women in Germany and for our democracy.
This can only be understood as a clear mandate for the governing coalition and the legislature. Now is the time for action. This legislative period must see the development of a new legal framework for abortion – outside of the Criminal Code, in order to ensure equal rights and guarantee good medical and psychosocial care. The parliamentary groups of the SPD and the Greens in the Bundestag have already passed resolutions to this effect. Now it is up to the FDP to agree to the liberalisation of abortion care.
This article first appeared here: www.boell.de
