Abortions: Will abortions soon no longer be punishable?

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Banner at a demonstration against paragraph 218 of the Criminal Code in May 2021 in Frankfurt am Main

Photo: Christoph Hardt / Future Image / IMAGO

It is likely to be one of the biggest socio-political debates of this legislative period: the traffic light coalition has decided to examine “regulations for abortion outside the criminal code”.

That's what the coalition agreement says.

A commission is to be set up for this examination, the 18 members of which have now been determined according to SPIEGEL information, including various lawyers and medical ethicists.

"Especially the political decision on complex ethical questions needs a good scientific basis," Health Minister Karl Lauterbach (SPD) told SPIEGEL.

He is very grateful that 18 "highly decorated" experts have agreed to work on the "Commission for Reproductive Self-Determination and Reproductive Medicine".

"It's about extremely difficult questions: whether an abortion should also be possible outside of the current laws, whether egg cell donation will be legalized and whether we will allow surrogacy," said Lauterbach.

He was aware that this would trigger an emotionally charged discussion.

»The aim of this process is to get all sides involved and then to come to a socially respected consensus.«

Can deletion stand up to the Constitutional Court?

Among the members is, for example, the chairwoman of the German Women Lawyers Association, Maria Wersig.

Her association had already drawn up an expert opinion in which the lawyers determined how Paragraph 218 could be deleted from the penal code and noted how backward German law is on this point.

Other lawyers doubt whether a deletion of the paragraph would last before the Federal Constitutional Court.

FDP Minister of Justice Marco Buschmann repeatedly raises these doubts.

In the Union, people are generally appalled by the project: the CSU had already announced that it would go to the constitutional court if the paragraph were to be deleted.

That was last judged in 1993.

more on the subject

Fight against paragraph 218: "Down with the abortion paragraphs" by Jasmin Lörchner

According to Section 218 of the Criminal Code, abortions are prohibited in Germany.

However, if they occur within the specified time limit and upon presentation of a counseling certificate, they are exempt from punishment.

They are also exempt from punishment if they threaten the life of the pregnant woman or after a rape.

This regulation was significantly influenced by decisions of the Federal Constitutional Court.

At the beginning of the year, Federal Family Minister Lisa Paus (Greens) made a move to abolish paragraph 218.

However, the appointment of the commission agreed in the coalition agreement was delayed.

Originally, the intention was to meet for a constitutive meeting at the end of February.

It is said that there is no date for a first meeting yet.

In the background there was talk of scheduling difficulties.

The setting of priorities in the various ministries probably also played a role.

Buschmann's legal reasoning should be encouraged by the fact that the FDP wants to appeal to much more conservative voters than the Greens.

One of the more conservative voices in the commission is the medical ethicist Christiane Woopen, who until 2007 was a member of the association »donum vitae to promote the protection of human life e.

V.«, which offers pregnancy conflict counseling with a Christian background.

Woopen has also headed the German Ethics Council and has already dealt with abortions and prenatal diagnostics on behalf of the German Medical Association.

Getting rid of 219a was easy

At the beginning of the legislature, the traffic light government had already removed another paragraph from the penal code: Paragraph 219a had forbidden doctors from providing information that they were performing abortions.

In the meantime, they are allowed to give information about it.

The constitutional lawyer Frauke Brosius-Gersdorf, now also a member of the future commission, had already declared 219a to be unconstitutional in an expert opinion in 2020.

At that time it was specifically about the case of the doctor Kristina Hänel.

The project around 219a was a quick success of the traffic light, which was able to make the socio-political differences to the previous coalition clear.

In the grand coalition there was still a struggle over the paragraph.

The SPD would like to see it abolished, but the Union could hardly go along with this step.

Instead, the Federal Minister of Health at the time, Jens Spahn (CDU), approved a list at the German Medical Association on which doctors who perform abortions could register.

It seemed to him that the need for information on the subject was covered.

In addition, he had a much-criticized study on the psychological consequences of abortions set up, the results of which his successor Karl Lauterbach will probably receive this summer.

The topic of paragraph 218 is likely to open up social rifts that were filled in with the deadline regulation.

The commission is to meet for a year.

The Commission's work does not release the traffic light government from tackling other abortion-related issues.

For example, Minister Paus wants to enact a law against "pavement harassment" in front of demolition practices.

Again and again so-called lifeguards stand in front of the entrances to the doctors and try to intimidate women.

The lobby of these activists is growing, while at the same time there are fewer and fewer doctors who perform abortions.

The traffic light government can also take care of this by improving the supply situation.

Lauterbach could, for example, adapt medical training or require hospitals to offer abortions.

All this would be possible without any commission.