German Constitutional Court abortion decision, 1975

The Federal Constitutional Court of Germany first addressed the issue of abortion in 1975, two years after Roe v. Wade, in a decision reported at BVerfGE 39,1, holding that respect for human dignity requires the criminalization of abortion if it is not justified by imperative reasons called "Indikationen". There are several "Indikationen", most notably the medical "Indikation", meaning that the life of the mother would be at risk if she had to carry the child to term, and the criminal "Indikation", meaning that the child is the result of the mother being raped.

The decision considered the full range of arguments for abortion, both early (legalization had been a topic of debate in Germany since the turn of the century) and recent (used in other countries such as the United States and Britain that legalized abortion several years before). In particular, it specifically rejected the main points of reasoning in Roe v. Wade as well as its "term solution" as inconsistent with the constitutional guarantee of the right to life. The Court held that Article 2, Paragraph 2 of the Basic Law for the Federal Republic of Germany's guarantee that "Everyone has the right to life", read in light of Article 1's guarantee of human dignity, must extend to the life of the unborn.

The reunification of Germany resulted in a significant revision of abortion laws, which liberalized them in many respects, although leaving them more restrictive than the East German laws which permitted abortion upon demand during the first twelve weeks of pregnancy.In the early 1990s, the German legislature (Bundestag) implemented a system where a woman having an abortion during the first three months of her pregnancy does not face legal sanctions if she undergoes mandatory counseling which has as one of its goals to present the case that the developing fetus is an independent human life, and obeys a 72 hour waiting period between counseling and the abortion. Later abortions are not punishable if medical reasons, such as possible harm to the woman from continued pregnancy, or a severely deformed fetus, indicate so.

In a second judgment in 1992, the Federal Constitutional Court upheld these relaxed restrictions on abortion, although an abortion in the absence of an "Indikation" was declared illegal. Despite this finding of illegality, the decision does not make all abortions punishable, however, because the Court no longer considered that respect for human dignity requires the criminalization of abortion. In particular, the Court held that the state has a duty to use "social, political, and welfare means" to foster developing human life, and that these are preferable to penal measures (though the latter are not ruled out). In general abortions without an "Indikation" are therefore illegal, but not punishable – i.e. they are de facto legal in Germany.

External links

• English translation of decision
• Major source for this page (used with permission), which contains commentary not included here.