39 BVerfGE 1 (1975)

[Facts:
The case arose out of a constitutional challenge of Section 218a of the Criminal Code after the passage into law of the Fifth Law to Reform the Criminal Law. The case was brought before the Federal Constitutional Court by 193 members of the Bundestag and five states--Baden-Wuetttemberg, Bavaria, Saarland, Schleswig-Holstein, Rhineland-Palatinate. Section 218a of the reformed Criminal Code reads that termination of a pregnancy is generally legal if the abortion is performed with the consent of the pregnant woman within the first twelve weeks of the pregnancy.

{Translator's Note:

The Fifth Law to Reform the Criminal Code represents the so-called Fristenloesung--a solution of the abortion issue relying on a combination of a deadline until when an abortion may be performed with some mandatory counseling procedures. The Federal Constitutional Court overturns this solution and adopts the so-called Indikationsloesung--a solution to the abortion issue by limiting the realm of legal abortions to certain indications, that is, predefined circumstances or legally valid reasons for abortions.}

Issue:

Does the reformed abortion statute violate the right to life of the life developing in the mother's womb?

Holding by the First Senate:

Yes, it does. The reformed law is enjoined and the legislative is asked to draft a new statute in accordance with this decision.

Discussion:]

C.

I.

1. Article 2.2. first sentence of the Basic Law also protects the life developing within the mother's womb as an independent legal interest.

b) "Everyone" within the meaning of Article 2.2. first sentence of the Basic Law is "every living human being", or, put differently, every human individual possessing life; "everyone" thus also includes the still unborn human being.

2. The duty of the state to protect every human life can therefore be derived directly from Article 2.2. first sentence of the Basic Law. [This duty] also arises from Article 1.1. second sentence of the Basic Law; for the developing human life is included in the protection of human dignity which is granted by Article 1.1. of the Basic Law. Where human life exists it merits human dignity; it is not decisive whether the holder of this human dignity knows of it and is able to maintain it by himself. The potential capabilities lying in human existence from its inception on are sufficient to justify human dignity.

3. ... In accordance with the prior decisions of the Federal Constitutional Court the Basic Rights not only provide subjective defensive rights of the individual against the state, they also embody an objective order of values which binds basic constitutional decisions in all areas of the law and constitute guidelines and impulses for the legislative, the administrative and the judiciary...

II.

1. ... Human life, as need not further be justified, represents the supreme value within the constitutional order; it is the vital basis for human dignity and the prerequisite of all other basic rights.

2. The duty of the state to protect developing human life exists in principle also with respect to the mother. Undoubtedly, the natural union of the unborn life with the mother establishes a special relation for which there is no parallel in any other factual situation of life. Pregnancy belongs to the intimate sphere of women which is constitutionally protected by Article 2.1. of the Basic Law in conjunction with Article 1.1. of the Basic Law. If [one] were to regard the embryo only as a part of the maternal organism, the termination of a pregnancy would fall within the [mother's] sphere of private life decisions into which the legislator may not intrude. Because the nasciturus is an independent human being which is protected by the Constitution, the termination of a pregnancy has a social dimension which makes accessible to and in need of state regulation. It is true that a women's right to develop her personality, which consists of the of the freedom of action in a comprehensive sense and therefore also includes the women's right to take responsibility for herself and to make a decision against parenthood and the duties arising therefrom, also deserves the recognition and protection [of the state]. But this right is not given without limitation--the rights of others, the constitutional order, and moral law limit it... No balance is possible which would guarantee both, the protection of the life of the nasciterus and the freedom of the pregnant women to terminate her pregnancy, for the termination of a pregnancy always means the destruction of unborn life. In the necessary balancing process both constitutional values must be perceived in relation to human dignity as the center of the constitution's value system. When using Article 1.1. of the Basic Law as a standard, the decision must favor the protection of the fetus' life over the right of self-determination of the women. [The women] may be limited in some potential personal developments by pregnancy, birth, and childrearing [and her right to self-determination may thus be impaired]. The unborn life, however, gets destroyed by the termination of a pregnancy. Pursuant to the principle of the most careful balancing of competing constitutionally protected positions, and considering the fundamental concept behind Article 19.2. of the Basic Law, the protection of the nasciterus's life must be granted priority. This priority principally lasts for the entire duration of the pregnancy...

3. From [the discussion] above the constitutionally required fundamental position of the legal order with respect to termination of pregnancies may be deduced: The legal order may not render the women's right to self-determination into its sole guideline for its regulations. The state must principally assume a duty to carry a pregnancy to terms, a termination [of a pregnancy] must therefore principally be seen as a wrong. The legal order must clearly articulate its disapproval of the termination of pregnancies. The wrong impression must be avoided that a termination of a pregnancy is, for instance, an event socially similar to a trip to the doctor to cure an illness or, even worse, a legally irrelevant alternative to contraception. The state may not avoid its responsibility and declare a legal vacuum by not making a value judgment and leaving this judgment to individuals [who make such decisions only on their own behalf].

III.

[The means] how the state is to fulfill its obligation of an effective protection of life are first to be decided upon by the legislator. [The legislator] decides which protective measurements it judges useful and necessary to effectively guarantee the protection of life.

1. Especially with respect to the protection of unborn life the guiding concept is the priority of prevention as opposed to repression. It is therefore the state's task to use sociopolitical means as well as public assistance to safeguard the developing life... To reawaken and strengthen the maternal will to protect [the unborn life] in cases where it has been lost shall be the noblest end of the state's endeavor to protect life...

2. The issue of how much the state is constitutionally required, in order to protect the unborn life, to use criminal law, the harshest weapon it has at its disposal, cannot be answered by a simplified question asking whether the state has to punish certain acts. [A view of the entire issue is necessary.] ...

The legislator is principally not obliged to employ the same criminal sanctions for the protection of unborn life that it deems useful and necessary for the protection of born life...

a) The task of the criminal law has always been to secure the elementary values of community life. As established above, the life of individual human beings is among the highest legal values. The termination of a pregnancy irrevocably destroys human life which has come into being. The termination of a pregnancy is an act of killing... From this perspective the use of criminal law to punish "acts of abortion" is undoubtedly legitimate; [such use] is the current law in most civilized states--in variously formulated conditions--and fits within the German legal tradition...

b) However, punishment should never be an end in itself. Its use is principally subject to the decision of the legislator. Nothing prevents [the legislator] to express the above outlined constitutionally required legal disapproval of termination of pregnancies by means other than the threat of penal punishment. What is determinative is that the entirety of measurements taken to protect unborn life, be they private, public, or more particularly, be they of the nature of social or criminal law, in fact guarantee a level of protection adequate to the importance of the legal interest to be safeguarded...

3. As has been shown, the duty of the state to protect the developing life also exists with respect to the mother... The incisive effects of a pregnancy upon the mental and physical condition of a woman are evident and require no further exposition... In individual cases serious and even life-threatening situations of conflict may emerge. The unborn's right to life may result in a burden to the woman which is significantly larger than the one normally connected with a pregnancy. Here the question emerges of how much [the woman] can be expected to endure, in other words, the question arises whether in such cases the state may compel [the woman] to carry the child to terms by means of criminal sanction. Respect for the unborn life conflicts with the woman's right not to be forced to sacrifice her own values to an unbearable degree in order to protect the unborn life. In such a situation of conflict, which usually does not permit a clear cut moral judgment and in which the decision to terminate the pregnancy may be one of conscience and worthy of respect, the legislature has the duty to exercise particular restraint. If, in these cases, [the legislator] does not deem the behavior of the pregnant women deserving of punishment and forgoes the imposition of the means of criminal punishment, then the result of the balancing incumbent upon the legislator must be constitutionally accepted.

When filling the "unbearable criteria" with content, circumstances must not qualify which do not seriously burden the person with the duty [to carry the child to terms], because [such circumstances] represent normal situations with which anyone has to deal. Instead, circumstances with considerable weight must be given, which to a degree out of the ordinary, render it difficult for the affected person to comply with her duty, so that she cannot fairly be expected to do so. [Such circumstances] are especially present when the affected person is thrown into heavy inner conflicts by the fulfillment of her duties. To solve such inner conflicts by the threat of penal sanction does not seem adequate, because [such a solution] uses force in a case where respect for the personal sphere of human beings demands complete inner freedom to make decisions.

A continuation of the pregnancy seems especially unbearable if it can be shown that the termination is necessary in order to "avoid a threat to the pregnant woman's life or [to avoid] a threat of a serious impairment of her health condition."(Sec 218b, No.1, Criminal Code in the Version of the Fifth Law to reform the Criminal Law) In this case [the pregnant woman's] "right to life and inviolability of the person" (Basic Law Article 2.2., first sentence) is in jeopardy, [a right] she cannot be expected to sacrifice for the unborn life. In addition, [in circumstances] in which the burdens for the pregnant woman would subject her to burdens out of the ordinary which, from the viewpoint of what may be expected from someone to bear, are similarly unbearable than the ones listed in Sec 218b, No 1, the legislator may refrain from imposing penal sanctions for a termination of a pregnancy... [Among such circumstances are especially cases in which] eugenic, ethical (criminological), and social or emergency indications {Notlagenindikation} [are reasons for the desire to termination a pregnancy]. In the deliberations of the of the Criminal Law Reform, the representative of the federal government demonstrated at great length and with convincing reasons why, in these four indication cases {Indikationsfaellen}, a carrying to terms of the pregnancy appears to be beyond the burden of what can be expected from someone to bear. The decisive point in all these cases is that another interest asserts itself with urgency, which, from a constitutional perspective is equally worthy of protection, so that state's legal order cannot demand that the pregnant woman always gives priority to the right of the unborn.

Also the indication of general emergency (social indication) may be categorized [as one of legitimate reasons to terminate a pregnancy]. For the general social situation of the pregnant woman and her family may produce conflicts of such gravity, that [the state] cannot extract sacrifices in favor of the unborn life beyond a certain degree from the pregnant woman by the means of the criminal law. When regulating this indication case, the legislator must describe the situation which will not lead to punishment in such a way that the gravity of the required social conflict becomes clearly visible and--from the viewpoint of what burdens may be expected from someone to bear--congruence of this indication with the other indication cases is assured. If the legislator removes these true cases of conflict from the coverage of the penal law, he does not violate his duty to protect life. Also in these cases the legislator may not be content with merely examining and certifying, where appropriate, that the legal prerequisites exist for exempting a termination of a pregnancy from punishment. Rather the legislator [has the duty] to offer counseling and help with the aim to remind the pregnant woman of her fundamental duty to respect the unborn's right to life, to encourage her to continue the pregnancy, and--especially in cases of social need--to support her by means of practical assistance.

In all other case the termination of pregnancy remains a wrong deserving of punishment; for here the destruction of a legal interest of the highest order is subject to the unbound discretion of another which is not motivated by a necessity. If the legislator wanted to do without criminal sanctions in these cases, this would only be compatible with the duty of the state to protect [life] outlined in Article 2.2., first sentence of the Basic Law, had he another equally effective legal sanction at its disposal, which would indicate the wrongness of the conduct and the disapproval of the legal order [of such conduct] and which would prevent termination of pregnancies as effectively as a penal provision.

D.

If one scrutinizes the challenged Fristenloesung (deadline and counseling solution) of the Fifth Reform of the Criminal Code with the guidelines [outlined above], it follows that the [reformed] statute does not in the required degree live up to the duty to protect developing life from Article 2.2. first sentence of the Basic Law in combination with Article 1.1. of the Basic Law.

[In the following passages the court concretely outlines several reasons why the reformed abortion regulations of the Criminal Code is unconstitutional.

The reformed Criminal Code fails to explicitly articulate the legal disapproval of termination of abortions as is required under the Basic Law (II. 1).

The reformed Criminal Code fails to provide for legal sanctions in cases where an termination of a pregnancy is not constitutional (II. 2.).

The mandatory counseling procedure in the reformed Criminal Code insufficiently deters abortions. First, doctors are not qualified to inform women about available public and private welfare and aid benefits (II. 3. a)). Second, the fact that the same doctor who performs the abortion does the counseling to dissuade a woman to abort will very likely lead to suboptimal deterrence (II. 3. b)). Third, the fact that the abortion may be performed immediately after the counseling is very unlikely to lead to lead to optimal deterrence (II. 3. c)).]

E.

[The court enjoins Section 218a of the reformed Criminal Code and asks the legislator to redraft the statute consistent with the present decision.

signed by all eight Judges]

 

Dissenting Opinion by Justices Rupp-v. Bruenneck and Dr. Simon

The life of every single human being is self-evidently a central value of the legal order. It is indisputable that the constitutional duty to protect such life also encompasses its preliminary state before birth. The disputes in parliament and before the Federal Constitutional Court did not refer to whether, but only to the how of this protection. The decision in this matter belongs to the responsibility of the legislator. Under no circumstances can a duty of the state be derived from the constitution to subject every termination of a pregnancy, at any stage, to punishment. The legislator was as free to decide for the Fristenloesung (counseling and deadline solution) as he was [to opt] for the Indikationsloesung (indication solution)...

A.

I.

The mandate of the Federal Constitutional Court to annul decisions of the parliamentary legislator requires sparse use in order to avoid a shifting of power among the constitutional organs. The command of judicial self-restraint, which has been labeled the "life-giving elixir" of the judicial office of the Federal Constitutional Court, is binding in particular when a case does not deal with defending against excesses of the state's power, but rather when it involves directing, by the means of constitutional judicial control, [the work] of the legislator, who is immediately legitimated by the people, in the positive shaping of the social order. [In the above situation] the Federal Constitutional Court may not yield to the inducement to seize the function of the organ to be controlled, if, in the long run, the status of constitutional [subject matter jurisdiction] is not to endangered.

1. The [constitutional review] asked for in this case goes beyond the realm of classic constitutional control. The Basic Rights, which are at the center of our constitution, guarantee the citizen, in the form of defensive rights in relation to the state, a sphere in which [the citizen can engage in a free design of his life and where he may assume the sole responsibility for his life]. The classic function of the Federal Constitutional Court here lies in warding off injuries to this personal sphere caused by excessive interventions of state authorities. At the peak of the scale of state interventions lie penal provisions: They order the citizen to behave in a certain way and subject him, in cases of noncompliance, to severe restrictions of freedom or to financial burdens. Constitutional control of such provisions thus means a review of whether the encroachment into the sphere of personal freedom protected by the Basic Rights due to the passing or application of the penal provision is permissible. [The question is whether the state] is permitted to punish at all or in the desired extent.

In the present constitutional dispute the reverse [question] is, for the first time, subject to review, [namely], whether the state must punish, concretely, whether the lifting of the penal provision against termination of pregnancy during the first three months of pregnancy is compatible with the Basic Rights. It is, however, self-evident, that to refrain from punishment is the opposite of a state intervention...

2. Because the Basic Rights, [if seen] as defensive rights, are from the outset unsuitable to prevent the legislator from lifting penal provisions, the majority of the senate wants to find the basis for doing so in a more extensive meaning of the Basic Rights as objective value decisions. [According to the majority's interpretation], the Basic Rights not only are normative as defensive rights of the individual against the state, but simultaneously contain objective value decisions, the realization of which is to be promoted through active measures by the state authorities. This interpretation has been developed by the Federal Constitutional Court in the commendable endeavor to improve the effectiveness of the Basic Rights in their function to secure freedom and achieve social justice. The majority of the senate, however, fails to adequately consider the differences of the two aspects of the Basic Rights which are fundamental for courts' constitutional control.

[Seen] as defensive rights the Basic Rights have a relatively clear, identifiable content; in their interpretation and application the [judicial branch] has developed practical, generally accepted criteria for the control of state interventions--for example, the principle of proportionality. In contrast, it is regularly a highly complex question how a value decision is to be effectuated by active measurements by the legislator. The necessarily broadly formulated value decisions could be characterized as constitutional mandates, which determine the direction of all acts by the state, [mandates] however which depend upon a translation into binding regulations. Depending on the evaluation of the factual circumstances, on the concrete goals and their ranking, [and] on the suitability of conceivable means and methods, very different solutions are possible. The decision [as to which solution to adopt], which in many cases requires prior compromises and [which] is arrived at in a trial-and-error process, belongs, pursuant to the fundamental rule of the separation of powers and the democratic principle, within the responsibility of the legislator.

The concept of the objective value decision shall not become the vehicle for transferring specifically legislative functions, [such as] the design of the social order, to the Federal Constitutional Court. Otherwise the court would be forced into a role for which it is neither competent not equipped... [The court] may only counter the legislator when he has completely disregarded a value decision or when the nature and manner in which [such a decision] was effectuated is obviously erroneous. On the contrary, the majority accuses the legislator, despite seeming recognition of his freedom to design [the effectuation of value decision], of not having realized, in the majority's opinion, a recognized value decision in the best possible manner. If this [way of arguing] became the general yardstick for review, the command of judicial self-restraint would be given up.

II.

1. Our strongest worry aims at the fact that, for the first time in constitutional adjudication, an objective value decision is to serve [as a justification] for postulating a duty of the legislator to issue penal provisions, that is, [to assume a duty upon the legislator to employ] the strongest conceivable interference into the citizen's sphere of freedom. This reverses the function of the basic rights into their contrary. If the objective value decision contained in a Basic Right for the protection of a certain legal interest were sufficient to derive therefrom a duty to punish, [then] the Basic Rights could covertly turn from a hub to secure freedom into the basis of a network of rules limiting freedom. What applies to the protection of life can also be employed with respect to other legal interests of high priority, such as inviolability of the person, freedom, marriage, and family.

Of course, the Constitution presupposes that the state, for the protection of an orderly living together [in the society], can also use its power to punish; however, the meaning of the Basic Rights does not aim at demanding [the use of the state's power to punish], but to draw boundaries for such use. [Following a similar line of argument], the Supreme Court of the United States even judged it a violation of a Basic Right to punish termination of pregnancies performed by a physician with the consent of the pregnant woman during the first third of the pregnancy. {citing to Roe v. Wade} [Such an argument] would go to far under German constitutional law. However, according to the freedom-oriented character of our constitution, the legislator needs a constitutional justification for punishing, but not if he refrains from a punitive sanction because, in his opinion, the threat of punishment does not promise success or seems to be an inadequate reaction for other reasons.

The contrary interpretation of the Basic Rights inevitably leads to a no less worrisome extension of constitutional control: Not only has it to be checked whether a penal provision interferes too far into the legal sphere of the citizen, but also the reverse, whether the state punishes not enough. [In doing this] the Federal Constitutional Court will, contrary to the opinion of the majority, not be able to limit itself to the question of whether the passing of any penal norm is required, but [the court] will also have to clarify which penal sanction for the protection of a particular legal interest is sufficient. In the final consequence the court could even be forced to review whether the application of a penal norm in a single case sufficiently serves the concept of protection [of Basic Rights]...

B.

Even if one, contrary to our opinion, follows the majority and finds a constitutional duty to punish conceivable, [one] cannot accuse the legislator of a violation of the constitution in the present case...

[The court then offers a detailed description of the failure of the penal sanctions before the reform of the Criminal Code.]

3. In this general situation the "reduction of the abortion epidemic" is not only a "sociopolitical desirable aim", but especially important and urgent to better protect life and to restore the credibility of the legal order. In the endeavor to solve this highly difficult task the legislator exhaustingly considered all main viewpoints. The reform of Section 218 of the Criminal Code already extensively occupied the public [which is] deeply polarized with respect to this question. The parliamentary debates, [aware of the polarized public], were conducted with great seriousness and unusual thoroughness. [In these debates] the value decisions of the constitution were explicitly considered; particularly, unanimity existed with respect to the state's duty to protect unborn life...

In choosing the [reform] solution, the legislator could assume that, facing the failure of the penal sanctions, the suitable remedial means are to be sought in the social and societal realm, [it could further assume] that it is essential, on the one hand, to employ preventive psychological, socio-and societal-political measures of a supportive nature to facilitate the mother's carrying to terms of the pregnancy and to strengthen her own willingness to do so, [and], on the other hand, to provide better information about the options of contraception to decrease the number of unwanted pregnancies. The majority evidently does not doubt that such measures, seen from a complete perspective, are the most effective ones and most likely [the ones] to lead to an effectuation of the Basic Rights in the sense of greater freedom and increased social justice.

Supportive measure of this kind can understandably, [for instance] due to differing authority of state organs, find only limited inclusion into a criminal statute. The Fifth Law to Reform the Criminal Law therefore solely encompasses a duty to undergo counseling. According to the legislator's plan, the pregnant woman--without the fear of punishment--is thereby to be taken out of her isolation, [moreover] the coping with her problems is to be rendered easier for her by open contacts with her environment and by individual counseling adjusted to her personal situation of conflict. [The fact] that the prescribed counseling is to protect the developing life by awakening and strengthening the [mother's] desire to carry the pregnancy to terms, wherever no serious reasons against [the carrying to terms] exist, is already evident from the statutory material and the majority vote of the parliament cited by the majority.

We do not dispute that the counseling regulation--as outlined by the majority--still has weaknesses. As far as these [weaknesses] could not have been remedied by an interpretation of the law in harmony with the Constitution and by adequate practical regulations of the states, a constitutional challenge should have been limited solely to these weaknesses and should not have questioned the Fristenloesung (deadline and counseling solution) in its entirety...

IV.

Altogether, in our opinion, the legislator was not precluded by the Constitution to drop the threat of a penal sanction, which, in his undisputed opinion, was for most parts without effect, inadequate, and even damaging. [The legislator's] attempt to remedy, in the present circumstances, the inability of state and society to protect life by socially more adequate means, may be imperfect; [the attempt] , however, is more conform with the spirit of the Basic Law than the demand for punishment and disapproval.

[signed by Rupp-v. Bruenneck and Dr. Simon]

 

West German Abortion Decision: A Contrast to Roe v Wade, 9 John Marshall J. Prac & Proc. 605 1976

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