Enlarge image
Demonstration in front of the Federal Council for the abolition of criminal law paragraph 219a, which regulates the ban on advertising for abortion (archive image)
Photo:
Wolfgang Kumm / picture alliance / dpa
America!
A very special kind of legal battle of faith is currently taking place in the USA, driven by the aggressive will of the most pious, who, as always, are always concerned with principles and rarely with people, and executed by the Supreme Court, a somewhat similar position to the Federal Constitutional Court Court where, however, unlike, for example, in the jury system, it is not the idea of democracy, which is sympathetic in itself, that leads to funny results, but the belief in the power of senile followers.
It was, as will be remembered, the Chancellor of the Peace Schroeder who once fired a justice minister because she had called the legal system of her American friends "rotten".
Of course this is not possible!
Meanwhile, the party of Karl Liebknecht and Otto Wels called Chancellor Schröder "rotten."
In the US, it is about the legality and criminalization of abortion itself.
We don't have to and don't want to deal with the excitement that is produced there, which in many cases only seems absurd.
Suffice it to say that the German armies of faith are once again roaming about in fields, forests and fields, where the easily excitable Americans are already in tears and, saber drawn, launching the all-decisive attack.
In this country, in short, it is once again about Section 219a of the Criminal Code (StGB).
Among monsters this is less a lion with long teeth than a rabbit with long ears.
draft
On May 13, the first reading of a federal government bill took place in the German Bundestag.
The law bears the unwieldy name »Act to amend the penal code – repeal of the ban on advertising for abortion (§ 219a StGB), to amend the drug advertising law and to amend the introductory law to the penal code« and runs under the house number Bundestags-Drucksache (BT- Drs.) 20/1635.
BT-Drs. 20/1017 (motion of the CDU/CSU: “strengthen the interests of women, maintain protection of the unborn child”) and BT-Drs. 20/1736 (motion of the LINKE: “delete § 219a StGB” were also discussed. ).
As a former student of German studies, I have to compulsively write to the CDU/CSU in the margin that one programmatically speaks of either
a
woman or
a
child or both in the plural, should also speak of multiple births, but not of the birth
of a
child by
several
women.
Unless the midwife and empathy art has now also overcome gynecological borders.
Leaving this aside, the battle situation is roughly as follows: Paragraph 219a of the Criminal Code, in its version valid until 2020, made it a punishable offense to publicly or in an immoral manner advertise the carrying out of so-called abortions for the purpose of personal enrichment.
That was part of the – we remember – compromise that led to the introduction of the “counselling solution” in 1994 after decades of social disputes, a clear case of a deadline solution with an obligation to offer counseling.
This case group of paragraph 218a paragraph 1 StGB covers 98 percent of the approximately 110,000 abortions registered in Germany each year;
only the small remainder is accounted for by the "indications" of paragraph 2, which are largely undisputed.
One can now say that the compromise of 1994 should be dissolved again for some reason and that a new argument should be started.
However, the two extreme positions (»freedom« = complete release up to the ninth month, or »morality« = the greatest possible restriction) have no chance of winning from the outset, because they are intolerable for society.
A renegotiation would therefore probably only be a fruitless argument about principles that would probably last for years.
A few years ago, the dissatisfaction of the “freedom” side shot up on the sideline of Paragraph 219a of the Criminal Code, which – representative of the overall regulation – now has to serve as an allegedly misogynistic target.
After many years of practically all (few) cases in which the public prosecutor's offices were promptly discontinued because of violations of the advertising ban against doctors, the case of the doctor Kristina Hänel from Gießen was inflated to an oversized political issue, spurred on by some Fanatics who have made it their fun and purpose in life to denounce and denounce doctors.
more on the subject
Doctor Kristina Hänel on abortions: "I didn't want to let women down" A SPIEGEL interview by Anke Dürr and Nike Laurenz
On January 1, 2021, after years of dispute, the current version of paragraph 219a came into force.
To put it simply, it makes it a punishable offense
to provide information about abortions (information) and to offer this service to the public (advertising)
at the same time .
Both are permitted on their own;
but you can't do both at the same time.
Reason for this prohibition of a
combination
is that doctors are to be prevented from advertising for their own financial interests an abortion that they claim is particularly good.
This is a concession to the case law of the Federal Constitutional Court, according to which the unborn life has an intrinsic value in law and in the constitution that is distinct from that of the pregnant woman and is therefore to be protected by the state - a classic case of balancing and proportionality.
In addition to the rather silly argument that doctors who perform abortions do not do it for the sake of their earnings, but because they are such good people, the opponents have for a long time now repeatedly argued that the regulation forbids doctors from »objectively informing« .
This narrative is maintained against all logic with the help of permanent repetition and prayer wheel-like, sincere »I just want to help« – affirmations of the doctor Hänel, who is transfigured like a prophet.
It has also found its way unchanged into the draft law, which states:
"Doctors who perform abortions (...) must expect criminal prosecution if they provide factual information about the process and methods of abortion... on their homepage (...)."
(Draft law p. 1)
The alleged result is said to be:
»This makes it difficult for the women affected to have unhindered access to appropriate specialist information about the medical intervention affecting them and to find a suitable doctor.«
(Draft p. 2)
And supposedly the doctors are also under serious threat:
»There is still legal uncertainty for doctors.
Because they remain exposed to the risk of criminal prosecution if they provide factual information about unpunished abortions (...).«
(Bill p. 8)
The Federal Minister of Justice also said on May 13 that it was an "absurd anachronism" that while some cranks were allowed to publish any nonsense, the "guardians of science" (meaning: doctors) were not allowed to publish the truth about abortions.
Oh well.
fantasy and reality
That sounds depressing and would indeed give rise to legislative activity.
The catch, however, is that none of this is true.
This is evident from the wording of the provision.
It is
not
forbidden for physicians – it cannot be repeated often enough – to communicate publicly about abortion as broadly and precisely as they wish.
This is even desired, just as information from public or private advice centers is expressly desired (and is still offered too little).
more on the subject
Voice catch podcast: Abortion - endless harassment? A podcast by Marius Mestermann and Rebekka Wiese
Any doctor (you don't have to be a gynaecologist) who performs abortions may also advertise this service, as long as it is not done in an offensive way (which is likely to be rather uncommon in practice).
He may also expressly point out where interested persons can obtain detailed information.
The nonsensical claim, repeated to the point of exhaustion, that the applicable law "prevents information" or "forbids doctors to inform women" is simply wrong.
Incidentally, every doctor – of course also those who perform abortions – is allowed (and required) without any restrictions to provide any desired and necessary explanations and information to a woman in person, by telephone or electronically in a personal consultation.
The claim that there is "legal uncertainty for doctors" because the combination of one's own service and public advertising is not permitted is therefore genuine nonsense.
The regulation is crystal clear and as easy to understand as a parking ban.
It is incomprehensible where “legal uncertainty” is supposed to come from in the case of licensed physicians.
Rather, it is generated in a targeted manner by constant talk of alleged “dangers”.
In reality, therefore, the fundamental question arises as to what serious disadvantages there should be for pregnant women who want to have an abortion if information and advertising are not provided together and »from a single source«.
It is obvious that it is convenient in individual cases if you happen to come across a doctor who performs abortions, advertises for them and informs the public.
But of course this is by no means the rule.
Because, of course, not a single doctor is
obliged
, to advertise or inform on its homepage;
just as there is no general obligation to perform abortions (some want to change that too).
Many doctors refrain from advertising this service because they are asked by patients anyway and because they want to avoid trouble with opponents of abortion or a loss of sales.
Many others refrain from turning their homepages into information platforms because, firstly, it takes a lot of time and, secondly, it creates liability risks.
Abortions are difficult in some areas of Germany not because the law is so misogynistic and child-friendly, but because the social mood does not regard abortion as removing the tonsils.
A woman who is willing to have an abortion, if she is sane, does not start randomly searching the Internet for doctors who might offer abortions on their homepages.
She can by no means be sure that she will quickly find any doctor or even the best doctor for her.
In practice, the women and girls concerned either ask their doctor or relatives and friends.
In addition, at least the non-church counseling centers have lists of doctors or hospitals who perform abortions.
more on the subject
Controversy over abortion rights in the USA: »I am a woman, not a uterus«By Daniel C. Schmidt, Houston
So, of all the ways to find out more about and find a doctor who will perform the abortion, one is to search the internet (for the business directory) to hit the road and find someone who happens to (!) be offering
and
advertising in the Practice by far the worst and least promising.
It seems downright absurd or cynical when the argument put forward against this is that poorly educated, socially disadvantaged women or women from minorities have particular difficulties in finding help in pregnancy conflicts.
It is precisely these women who are least likely to benefit from "comprehensive medical information" on the Internet.
principles and politics
The bill has been referred to committee.
On May 18, the legal committee conducted a hearing of nine experts / association representatives.
What comes out of such hearings is usually clear in advance, because the experts are summoned at the suggestion of the parliamentary groups (according to party proportional representation) and present prepared statements agreed with the parliamentary groups, which are then referred to in the committee report by those who "their" experts have suggested.
The texts of the statements published on the Internet on May 18 show that six of the nine summoned persons strongly support the deletion of paragraph 219a, three reject it.
Hänel, a doctor (finally sentenced for violating paragraph 219a), was also invited as an »expert«,
moreover, four associations and four university professors.
The opponents of the regulation claim – as usual – that the provision is “unconstitutional” and violates “women's right to information” – a strange argument, since the broadest possible information is desired.
The other side takes the view that the separation between information and advertising should be maintained and that removing this separation would in fact lead to no improvements.
I share the latter view.
the separation between information and advertising should be maintained and removing this separation would in fact not lead to any improvements.
I share the latter view.
the separation between information and advertising should be maintained and removing this separation would in fact not lead to any improvements.
I share the latter view.
Ultimately, however, as can be seen from statements by associations and speeches in the Bundestag, it is a minor matter that has been inflated into a question of principle.
This sometimes happens out of boredom or a lack of perspective.
But that is certainly not the case here.
As all combat troops know, the largely deliberately generated fog around paragraph 219a is used to camouflage further, strategic intentions: attacking the advisory solution as a whole on the one hand (Family Minister Paus in the Bundestag) and repelling any further facilitation of the demolition on the other.
On the fringes of both sides there are also radical positions that do not want to live with the compromises that are absolutely necessary here.
Because the extreme positions are neither useful nor practicable:
It is neither humanely possible to waive any prenatal legal protection, nor can one humanely enforce a general obligation to carry a child.
Anyone wanting to plunge society into conflicts and religious struggles only has to propagate such radical positions as loudly as possible.
Advertisement
Thomas Fisher
to be right
Miscellaneous from the world of criminal law: The best SPIEGEL columns by the ex-federal judge
Publisher: Droemer HC
Number of pages: 304
Miscellaneous from the world of criminal law: The best SPIEGEL columns by the ex-federal judge
Publisher: Droemer HC
Number of pages: 304
Buy for €20.00
price query time
20.05.2022 4.20 p.m
No guarantee
Order from Amazon
Order from Thalia
Order from Weltbild
Product reviews are purely editorial and independent.
Via the so-called affiliate links above, we usually receive a commission from the retailer when you make a purchase.
More information here
Paragraph 219a of the Criminal Code plays only a minor role in all of this, and the somewhat martyrically presented media fight by the doctor Hänel and a few other doctors is courageous and perhaps also lucrative (which is neither forbidden nor disreputable), but in no way decisive for the decision.
With this consideration, we finally come back to the transatlantic faith fighters and women friends.
There, as is well known, the question is how the gentlemen and ladies of the Supreme Court, ordered by far-sighted presidents up to the day when the pen slips out of their fingers in the nursing home, include the only right law in their findings the only right party and due personal gratitude for
the party
, and that changes a bit occasionally.
From afar this can be seen as "rotten," or a bit like the Supreme Court of China.
But we don't want to be too hasty there, even if the German crowd and spectators, as always, know exactly who the good guys are in America.
Rather, before the scolding gets out of hand again, it may be advisable to take a side look at the Federal Constitutional Court and the practices of its composition.
Twelve years (serving a constitutional judge) is not a lifetime, and a lot can change between 1994 and 2024.
Anyone who is seriously demanding today that the Pandora package of advisory solutions be reopened because then either freedom (?) or morality (?) will finally win, of course knows that this is not easy on the basis of the fairly clear determinations of the constitutional court and currently not possible.
But maybe soon, if you adjust the right screws in time.
This is also how legal policy works in Germany.
Call it whatever you want.
So far we haven't come up with anything better.