anti-abortion activists in Washington
Photo:
Kevin Dietsch/Getty Images
America, America!
The USA is far away and omnipresent, if only as the home of the jumping old people, a national debt of currently 20 million million (thirteen zeros!) Dollars and currently also as a source of enigmatic information about the nature, content and realization of the law in the in general, criminal justice in particular, and state responsibilities in particular.
In other words: The probability that a German layman will explain the criminal procedural law applicable at the district courts in Munich and Berlin using a jury case from the USA is significantly greater than the probability that an American layman will know where Munich is located.
If you want to write about a legal question that affects Germany and the USA, you always have to start by saying that these are two states with very different constitutional structures, very different substantive (criminal) laws and extremely dissimilar procedural laws.
Today we're going to talk about abortion again, which - according to general opinion, as far as I can see - is really a legal question, even if the word doesn't appeal to everyone who only understands the term "legal question" as contemptible enigmas like that , how long the warranty period for her toaster is, in case her sister-in-law had to suffer from a short circuit.
As expected, the US Supreme Court (USSC) decided last week that the “right to privacy”, which is guaranteed in an amendment to the US Constitution as a fundamental right that applies throughout the Union, does not result in a “right to privacy” that applies to all states to abortion« but that the guarantee or non-guarantee of such a basic right lies within the competence of the 50 states.
First of all – sorry!
– simply a justifiable interpretation of the constitutional law of a foreign state by the competent court there.
It may be bitter when courts decide differently than you would have wanted to do if you were allowed to do it.
It is a little surprising that in Germany there is a high level of interest in US constitutional law,
although almost nobody is actually interested in it, especially since it is much more complicated than the clear German Basic Law.
So before one conducts remote analyzes of the human depravity or corrupt involvement of individual federal judges on a distant continent, one could, as is customary in this country, first of all ask whether the decision is justifiable under the law applicable there.
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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
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For the last ten days, the German opinion landscape has been throwing itself into the question of who in the USA became a judge on the Supreme Court, why and how, whether he/she is "conservative" or "liberal", and which interest groups are crying out for triumph or lamentation voted for the USA.
I assume that the vast majority of German citizens have no more idea about the actual, legal and political conditions in California or Mississippi than about those in Romania or Uruguay.
I would like to know how many allegedly "conservative" or "liberal" judges the average German can name from the 16 judges of the Federal Constitutional Court.
I'm guessing just above zero.
It is therefore a real mystery why the sometimes absurd narratives of American domestic policy are also treated in German legal discussions as knowledge of secret truths and are used to answer local questions.
A chilling example is the countless press articles that have appeared in the past week on the "background" to the USSC's abortion ruling: consistently partisan to the max (in the pathetic, misleading dichotomy of "conservative" and "liberal"), to the extreme Individually personalized (e.g. SZ: “The silent judge rejoices”; SPIEGEL: “The man behind America’s shift to the right”; FAZ: “The Supreme Court follows the logic of patriarchy”), endless spreads of ideological obduracy and slogans instead of legal information.
Most important message: "America Divided",
»ever more divided«, etc. If one more proof of the decline of the US legal culture was needed, it seemed to me with the long essay by the professors Fernanda Nicola (Washington) and Günter Frankenberg (Frankfurt/M) in »FAZ objection « from 26.6.
provided, which seems like one long conspiracy story.
And on June 30, the FAZ reported that US senators accused two USSC judges of "perjury" when they stated at the pre-election hearings that they considered the old, now overturned decision to be "set case law." «.
Should judges in Germany ever (again) have to swear to governments or members of parliament before they are appointed, how they intend to decide in the future, the end of the European "value" culture may have come.
If one more proof of the decline of the US-American legal culture is needed, it seems to me with the long essay by the professors Fernanda Nicola (Washington) and Günter Frankenberg (Frankfurt/M) in "FAZ objection" from 26.6.
provided, which seems like one long conspiracy story.
And on June 30, the FAZ reported that US senators accused two USSC judges of "perjury" when they stated at the pre-election hearings that they considered the old, now overturned decision to be "set case law." «.
Should judges in Germany ever (again) have to swear to governments or members of parliament before they are appointed, how they intend to decide in the future, the end of the European "value" culture may have come.
If one more proof of the decline of the US-American legal culture is needed, it seems to me with the long essay by the professors Fernanda Nicola (Washington) and Günter Frankenberg (Frankfurt/M) in "FAZ objection" from 26.6.
provided, which seems like one long conspiracy story.
And on June 30, the FAZ reported that US senators accused two USSC judges of "perjury" when they stated at the pre-election hearings that they considered the old, now overturned decision to be "set case law." «.
Should judges in Germany ever (again) have to swear to governments or members of parliament before they are appointed, how they intend to decide in the future, the end of the European "value" culture may have come.
legal interest
It makes sense not to approach the questions with ready-made populist formulas, but from the principle: What "legal interests" underlie any (any) legal regulation of abortion?
And what's that all about?
Why can't the question of abortion be treated like the question of whether you can cut potatoes with a knife or go to the office in shorts?
Some would probably stutter and get the idea that "somehow" pregnancy is more important than current fashion.
But why?
Is an embryo a kind of appendix, a birthmark, a benign growth?
If yes why?
And how long?
Surprisingly, advocates of radical freedom from abortion always emphasize that "no woman makes the decision lightly."
This is not entirely free of contradictions
Another crucial question: is there only one »legal interest« in abortion law, or two, or even more?
"Legal property" is a legal-philosophical concept.
It was coined in the 19th century when an attempt was made to describe why and with what legitimacy state (criminal) law actually does what it does, and most people also consider it necessary.
Why are manslaughter, fraud or rape "punishable"?
Why not Burp, Forget Mom's Birthday, or Be Lazy?
Different countries, different times, different penalties!
Nothing is "absolute", everything is "relative"!
more on the subject
Abortion verdict in the US: Trump's judges triumphBy Roland Nelles, Washington
America at the Turning Point: The Attack on Fundamental RightsAn Analysis by Marc Pitzke, New York
US law professor on the Supreme Court's shift to the right: »It doesn't look as if this court fears any consequences« An interview by Marc Pitzke, New York
By a "legal interest" we understand a social "givenness" that is regarded as socially valuable, assigned individually or supra-individually: life, health, freedom, wealth, honor, self-determination.
Individual legal interests are assigned to individuals: persons who have "dignity" according to Art. 1 Para. 1 GG, i.e. an intrinsic value that is not derived, not "awarded", not dependent on the grace or consent of another person.
Every single woman has such personal dignity.
Interventions in their physical integrity and/or their will are therefore impairments of their legal interests.
The same applies, of course, to (born) children;
they are not – eg as long as they are breastfed or depend on care for their existence – outsourced parts of their mother (or even their father).
Presumably only a few people in this country are of the opinion that this applies exactly from the point at which the amniotic sac ruptures;
up to this second the (unborn) child is only a kind of dependent bump on/in the body of the pregnant woman.
No one who has ever experienced or witnessed the process of pregnancy and the development of a fetus can really take this seriously.
From this it can be deduced, with very good reasons, what the prevailing opinion, the case law and also the human and legal sciences mean: that there are - from the beginning of the pregnancy - at least two
different
, independent legal interests: the person of the pregnant woman and the – “becoming” person of the embryo.
This is the only reason why people who suffered damage before their birth through culpable interventions by third parties (violent offenders, malpractice doctors, chemical companies selling poisons) that only manifest themselves after birth can claim
their own damage
assert rights.
Compensation for victims of thalidomide in the 1960s or victims of 'dioxin' in the 1980s was not alms for the mothers, but claims by the children themselves. If they had only been "part of their mother" before birth, they would have had so little Claims like their appendix.
If one assumes that a fetus in the 6th or 8th month of pregnancy has a (own!) "life" - and not just a "viability" - then it is very difficult or impossible to justify why it does so in the 4th month of pregnancy should not have.
On the other hand, one cannot reasonably justify why the state should have an obligation to protect newborns but not for fetuses two weeks before birth.
That doesn't change anything about the state's duty to protect the life, health and self-determination of pregnant women, but, like so many other things, may lead to a »conflict«.
Of course, the state is obliged to protect fetuses from being killed (aborted) by force against the will of the pregnant woman, for example.
Even a state duty to protect against abortions that are grossly immoral (sale of embryonic tissue) or completely irrationally motivated (»exorcising the devil«) should not be condemned by the vast majority of citizens as paternalism hostile to freedom.
And finally, as is well known, mothers and fathers are not allowed to dispose of their children like animals after the birth.
In general, it is worth a few minutes of reflection to compare the protection of embryos against abortion with extracorporeal protection of embryos (in the Embryo Protection Act) and with animal protection.
Although animals are treated as a legal principle “like things”, hardly anyone has any doubts that they have a right to protection: “The state protects … animals within the framework of the constitutional order”, has been formulated in Article 20a of the Basic Law since 2002.
This protection also extends to animal fetuses.
In 2017, for example, the European Agency for Animal Welfare (EFSA) dealt extensively with the pain sensation of animal fetuses when pregnant farm animals are slaughtered.
consideration
Ergo: abortion has always been regulated normatively in all societies: it is »allowed«, tolerated, morally outlawed, customary under certain circumstances, prescribed, etc. Societies in which abortion was/is treated like the decision between gray bread and white bread , are not known to me.
Everywhere, with a few extreme exceptions, abortion is viewed as a matter of "consideration."
Balancing, however, presupposes various 'goods', in this case not only various goods of the pregnant woman (freedom of children versus interest in procreation), but also the weighing between 'freedom' (of the woman) and life (of the inevitably maturing child).
This weighing can be regulated, determined and interpreted in one way or another.
There is no such thing as an “absolute” assessment that can be derived from a timeless, “natural” or divine morality: Like all other valuations, this is also part of a constant social process of development.
Only the merciless extremes seem excluded to us today: A life-contemptuous, biological obligation of women to carry pregnancies at any (own) price on the one hand, a complete, unregulated availability of fetuses up to the point of birth for any arbitrary decision.
Except for deluded fanatics, nobody wants either of these extremes.
In both directions there are “sensitive” border areas that trigger concerns, indignation, and fear: countries in which 45-year-old women have had 15 abortions because sensible contraception (including male sterilization) is prevented or denied are not considered to be Islands of freedom, but as places of backward torment.
The same applies - correspondingly - to ideologically fanatical societies,
in which, for example, women are degraded to mere vicarious agents of patriarchal interests.
Every reasonable solution of our time that conforms to human rights must be somewhere in between, so it can only be a compromise.
This is not a disgrace to freedom, but, viewed in the light of day, its prerequisite.
advertising
On June 24, the Bundestag decided to abolish the so-called advertising ban of Section 219a of the Criminal Code (StGB).
This legislative project was formulated in the coalition agreement of December 7, 2021 and has been given priority by the new federal government.
Many welcomed the decision enthusiastically (the Federal Minister for Family Affairs called it a "triumph"), others complained, and still others interpreted it as a mere first step and a prelude to something bigger.
There is hardly anything new to say about it.
It was astonishing to the very end that the deletion of the (limited) advertising ban, without being disturbed by rational arguments in the mantra-like repetition, was justified by the fact that the regulation had »prevented information«.
That is simply wrong, but it did not prevent the Federal Minister of Justice from repeating it vigorously in the Bundestag session.
more on the subject
Abortion doctor Stapf on the situation in the USA: »Women will die« An interview by Juliane Löffler
Otherwise, the change in the law plays at most a marginal role in the everyday lives of those affected.
So far, everyone has been allowed to advertise;
there is no lack of information.
A legal
obligation
for all doctors to advertise abortions, to offer them or to provide "information" on their websites has fortunately not (yet) been introduced.
That's not quite as far-fetched as it sounds.
For the truly great "triumph" sought is to be what advanced language technology today calls complete "freedom of reproductive self-determination."
Incidentally, but significantly, this is one of the usual linguistic smokescreens (see also the misleading mumbling about "euthanasia") with which moral-ideological conflicts are plastered over: abortion there means "termination of the pregnancy," as if not for the fetus but for the something will be done to the pregnancy.
In "reproductive self-determination" the embryo, the "right to life" and weighing up no longer appear at all,
they are simply linguistically zeroed.
This is dishonest in every respect, because even the "self-determination" liberators by no means want every pregnant woman up to the ninth month to be able to exercise any "self-determination" over the child.
That is why the demands for outsourcing the regulations from the penal code are primarily aimed at symbolic effects: abortion should no longer be associated with "killing" at all, but should be integrated into the gentle lap of curative care and disappear into the impenetrable jungle of social security law.
This may seem tempting to many, but it is initially only a formal illusion.
In social law, too, questions will have to be asked, checked and boundaries drawn, and of course violations by third parties (not by the pregnant woman) will have to be sanctioned as before.
And if you don't want that, you will press the whole severity of the dispute over principles back into society, although there is hardly any reasonable reason or reason for it.
The (legitimate) complaints about the "deeply divided" society in the USA, the confrontation there between "life protectors" and "liberals" that went over the edge of open violence, the high social costs that this disintegration of social structures means, actually have reason be enough to avoid anything that would encourage a hardening in a similar direction in this country.
The time limit solution applicable in Germany, which covers 98 percent of all cases largely unspectacularly - although not without difficulties in individual cases - is based on a compromise that is not "without alternatives", but nevertheless rational and supported by the vast majority of the population.
What sense should it make in the world of pandemic,
German society plagued by war and fear of the future without needing to relaunch an ideological fundamental dispute with high potential for escalation?
The advice to simply stick to a regulatory system that may not be optimal for everyone, but that is viable and largely consensual and to make the best of it, may be boring, »typically« legal and not charged with much glamor.
But shared imperfection can also be very soothing.