New judgment on abortion clause 219a: "It makes no sense"

For Kristina Hänel it is the necessary next step to justice. The 4th Small Criminal Division of the district court of Giessen sentenced the doctor on Thursday in second instance for violating Paragraph 219a of the Penal Code to a fine.

The gynecologist informs on the website of her practice that she is giving birth abortions. And she also explains there which methods she offers and which risks there are. She did so in 2015 and she still does today. According to Clause 219a, this constitutes a prohibited advertisement for abortions. The new version of the paragraph has not changed that, judges said.

"It makes no sense"

These are clearly words that presiding judge Regine Enders-Kunze chooses on this day. However, they are not directed against the accused, but rather against the legislature. After a conviction Hänels they do not sound. "It makes no sense to criminally ban factual information about a medical procedure," says the judge. "It's hard to find arguments that made the 219a so law-abiding."

But the chamber had to judge according to this paragraph. "We have this rule in the law right now," says the judge. At the moment. "We are bound by what the legislature sets us by law, and the legislature is elected by the people."

Thus, the three judges - a professional judge, a judge and a lawyer - confirm on this day an earlier decision of the district court casting. The court only lowers the amount of the fine. 25 daily rates of 100 euros should pay the doctor. The district court had sentenced her to 40 daily rates à 150 euros.

On the way to the Federal Constitutional Court

Kristina Hänel wants to appeal appeal against the verdict. "And when we are finally convicted, the way is clear to Karlsruhe." The time is ripe for a fundamental decision of the Federal Constitutional Court.

The 63-year-old physician considers the paragraph 219a unconstitutional. He violated the fundamental right of freedom of occupation and freedom of expression and also represented a disproportionate interference with the fundamental right of women to freedom of information. She receives encouragement from the judge's bench.

Judge Enders-Kunze picks the paragraph in the verdict. "It is certainly questionable whether Paragraph 219a is constitutional," she says. "What is the legal right to protect?" This question arises when one considers that doctors are forbidden to publish even the most factual information even if the actual abortion is not punishable at all. The judge speaks of a "pre-criminalization". Kristina Hänel calls it later simply "absurd". Their defender, Karlheinz Merkel, called the paragraph an "ideological monster".

Moral ideas change

The paragraph 219a was once created to prevent abortions in the public would be presented as something normal, says Merkel. But moral ideas changed. And it was questionable anyway whether the state was responsible for questions of morality.

Fundamental doubt also raises the judge. "If you want to ban the information, does that have to happen in the form of criminal law?" She asks. "Can not it be sanctioned as an administrative offense?" But this could not decide her chamber, this must clarify the Federal Constitutional Court.

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The Chamber itself was bound by the decision of the Higher Regional Court of Frankfurt, which had not questioned the constitutionality of the law. The Frankfurt judges had overturned the first appeal judgment of the district court Gießen against Kristina Hänel and referred to the 4th chamber of the district court. This Chamber had now only to examine whether Kristina Hänels website also after the reform of the 219a violates the so-called advertising ban. According to the judge, she does it.

Since March 2019, Hänel has been allowed to announce on her website that she is carrying out abortions in her practice. However, it must not disclose how it makes these interventions, what methods are available and what are the risks. It may refer to authorized websites such as the German Medical Association, but may not offer information on its own site.

"Whether the 219a has succeeded in the reform?", Asks the judge and gives the answer itself: "No, he did not succeed."

Only at the beginning of the month had a Berlin verdict against two other gynecologists the inconsistency of the legal situation apparently (as the SPIEGEL reported).

Doctor Hänel sees herself confirmed in her fight for the abolition of the clause. "Even the last judge has raised concerns," she says afterwards. He had advised her to wear the verdict like an honorary title. Now this judge has expressed concerns. The same doubts about the meaningfulness of the law are also perceived in the population.

And Kristina Hänel's fight for the abolition of paragraph 219a continues.