Judgment of 25 February 1975

Reasons:

A.

1

The question at issue in these proceedings is whether the so-called time-limit rule of the Fifth Act to Reform the Criminal Law (Fünftes Strafrechtsreformgesetz), whereby the termination of a pregnancy in the first twelve weeks after conception is not subject to criminal punishment under certain conditions, is compatible with the Basic Law (Grundgesetz – GG).

I.

2

1. The Fifth Act to Reform the Criminal Law of 18 June 1974 (Federal Law Gazette, Bundesgesetzblatt – BGBl. I p. 1297) revised the provisions pertaining to criminal liability for abortion. §§ 218 to 220 of the Criminal Code (Strafgesetzbuch – StGB) were replaced; in comparison to the prior law, the new provisions provide, in relevant part:

3

Criminal punishment applies in principle to any person who terminates a pregnancy after the thirteenth day following conception (§ 218(1) Criminal Code). However, there is no criminal liability under § 218 of the Criminal Code when the abortion is performed no later than 12 weeks after conception by a physician and with the consent of the pregnant woman (§ 218a Criminal Code – the ‘time-limit rule’). Further, an abortion conducted by a physician with the consent of the pregnant woman is also not punishable under § 218 of the Criminal Code when it is medically indicated, either to avert a risk to the life of the mother or severe impairment of her health and insofar as these risks cannot be averted in any other reasonable way (§218b(1) – medical indication), or because there are compelling reasons to assume that the child would suffer irreparable damage to its health due to a genetic condition or other harmful influence prior to birth that is so serious that the pregnant woman cannot be expected to continue the pregnancy, and no more than 22 weeks have elapsed since conception (§ 218b(2) Criminal Code – eugenic indication). Any person who conducts an abortion on a pregnant woman who did not receive prior social and medical counselling from a physician or counselling agency is criminally liable (§ 218c Criminal Code). Any person who performs an abortion more than 12 weeks after conception without a competent authority first confirming that the requirements of either § 218 or § 219 of the Criminal Code (medical or eugenic indication) are met is also subject to criminal liability (§ 219 Criminal Code). The pregnant woman herself is not subject to liability under § 218c or § 219 of the Criminal Code.

4-30

[…]

31

2. Under the prior law, the killing of a foetus was generally subject to criminal punishment (§ 218 Criminal Code). That being so, since at least the decision of the Imperial Court of Justice (Reichsgericht) of 11 March 1927 ([...]), the case-law has recognised a justification in the case of the so-called medical indication as an extralegal emergency, following the principles of the balancing of legal duties and interests. In accordance with these principles, criminal liability for abortion was also repealed in the case of serious risk to the life or the health of the pregnant woman, when the abortion was performed by a physician with the consent of the pregnant woman and in accordance with standard medical practice. These requirements for the permissible termination of a pregnancy on medical grounds were codified in § 14(1) of the Act for the Prevention of Hereditarily Diseased Offspring in the version of the Amendment to the Act of 26 June 1935 ([...]). This provision continued to apply in some of the Länder until after 1945; in those Länder where the law was repealed, its standards were determined by the Federal Court of Justice (Bundesgerichtshof) in its decision of 15 January 1952 ([...]) to be the minimum requirements for a permissible abortion according to the principles of extralegal emergency.

32

3. The core of § 218 of the Criminal Code goes back to §§ 181 and 182 of the Criminal Code for the Prussian States of 14 April 1851 ([...]); these provisions served as a model for the provisions in the Criminal Code of the North German Confederation of 31 May 1870 ([...]), which were adopted verbatim in the Criminal Code of the German Reich of 15 May 1871 ([...]). [...]

33-35

[…]

36

The criminal provisions remained unchanged for more than 50 years. The Act to Amend the Criminal Code of 18 May 1926 ([...]) lessened the hitherto applicable punishment (automatic prison sentences or even penal servitude for professional abortionists).

37

More severe punishments were reinstated by the Act on the Implementation of the Ordinance for the Protection of Marriage, Family and Motherhood of 18 March 1943 ([...]).

38

The First Act to Reform the Criminal Law (Erstes Gesetz zur Reform des Strafrechts – 1. StrRG) of 25 June 1969 ([...]) reduced the penalties for self-abortion by eliminating the most serious punishment. Abortions conducted by others were classified as misdemeanours.

39

4. a) The general prohibition of abortion has been subject to debate since its inception. In particular, beginning in the early 1900s, there was vigorous debate even in the legal scholarship over whether abortion should be criminally punishable. Doubts were expressed as to the question of what legal interest was protected by a prohibition of abortion. Arguments for allowing exceptions to the unequivocal prohibition and the reasonable assessment of punishment were also raised.

40

The 1909 proposal by the Office of Justice for the Reich for a German Criminal Code, a counterproposal in 1911 from professors Kahl, von Lilienthal, Franz von Liszt and Goldschmidt, the proposed law developed based on the conclusions of the Criminal Law Commission of 1913 and the proposed law of 1919 all provided for a reduction in the criminal punishment applicable for abortion. In the explanation to the proposal of 1919, a complete exemption of criminal punishment for abortion was rejected ‘in light of the severe harm to the welfare of the people that could occur through the proliferation of abortion’.

41

b) During the Weimar Republic, § 218 of the Criminal Code was also the subject of vigorous discussion in the context of the – ultimately unfinished – work on a substantial reform of the criminal law. A considerable number of draft laws and interpellations on the reform of this criminal provision were submitted in the Reichstag. Some sought the complete repeal of §§ 218 to 220 of Criminal Code without any replacement, while some proposed eliminating punishment for abortions within the first three months of pregnancy. One proposal made on 31 July 1920 by Ms. Schuch, Prof. Radbruch and 53 other members of the parliamentary group of the Sozialdemokratische Partei Deutschlands (SPD) would have eliminated criminal liability for abortion ‘when carried out by the pregnant woman or a state-approved (licensed) physician within the first three months of pregnancy’ ([...]). None of the proposals were successful.

42

The 1922 draft of a General German Criminal Code referred by then-Justice Minister Prof. Radbuch, which formed the basis for further criminal justice reform, still imposed prison sentences for abortion. ([...]). Similar provisions were also included in draft legislation submitted in 1925, 1927 and 1930.

43

c) During the Nazi regime, abortion was primarily viewed, from the perspective of needing to ‘protect the national strength’, as an ‘attack on the strength of the people’ or an ‘attack on race and heritage’. The legislative efforts were aimed at imposing strict penalties, except for limited cases of indication that were to remain unpunished.

44

5. In 1960, as a preliminary result of the reform work on the Criminal Code that was resumed after 1945, the Federal Ministry of Justice compiled a comprehensive draft with an explanatory memorandum based on the resolutions of the Great Criminal Law Commission and that also referenced deliberations of a Länder commission ([...]).

45

According to this draft, abortion remained criminally punishable in principle (§§ 140 and 141), but with an exemption in the case of medical indication (§ 157). Moreover, § 160 provided that criminal punishment for the termination of a pregnancy by a physician with the consent of the pregnant woman should not apply when the court determined that someone had committed rape against the woman while she was mentally ill, lacking volition, unconscious, or physically incapable of resisting, or that someone other than the husband of the woman had transmitted his semen to the woman without her consent and there are compelling reasons for the belief that the pregnancy is a result of such action, provided that the termination occurred no more than twelve weeks after the end of the month in which the pregnancy began.

46

This ethical indication was nevertheless not included in the version of the 1960 draft Criminal Code that was submitted by the Federal Government to the legislative bodies ([...]). There were no further deliberations on this legislation in the third legislative period of the Bundestag.

47

In 1962, the legislator was presented with a new legislative proposal from the Federal Government that adopted §§ 140, 141, and 157 of the 1960 draft Criminal Code largely unchanged ([...]). A decision on this draft legislation could not be reached during the fourth legislative period of the Bundestag.

48

In November 1965, the 1962 draft of the Criminal Code was introduced as an initiative from a group of members of the Bundestag (Bundestag document, Bundestagsdrucksache – BTDrucks. V/32). The Bundestag referred the draft legislation to the Special Committee for Criminal Law Reform. After considering a so-called alternative draft Criminal Code (General Edition) (hereinafter, the ‘alternative draft’) developed by German and Swiss criminal law professors and published in 1966, the Committee submitted two draft laws partially amending the Criminal Code that were adopted by the Bundestag in 1969: the First and Second Act to Reform the Criminal Law. The First Act to Reform the Criminal Law revised the penalties of § 218 of the Criminal Code to the milder range previously discussed above. During the deliberations of the Special Committee for Criminal Law Reform, however, it was agreed that revising the penalties did not resolve the issues presented by § 218 of the Criminal Code and that a comprehensive reform of this section was needed ([...]).

49

This view was shared by the Special Edition of the alternative draft Criminal Code, which was published in early 1970. The termination of a pregnancy was – as set forth in the alternative draft – prohibited almost without exception and subject to criminal punishment. The societal reality, however, had moved so far away from these legal norms that the threat of criminal punishment had very little effect. This could be significantly harmful and inadequate, as the destruction of nascent life is – outside of exceptional situations – not only ethically reprehensible, but also constitutes the destruction of a legal interest. The drafters were unable to reach agreement as to the legislative measures necessary to achieve an effective protection of nascent life.

50

The majority decided upon a provision whereby abortion in the first three months of pregnancy would be exempt from criminal liability, specifically: within the first four weeks after conception in all cases and in the second and third months of pregnancy on the condition that the abortion was performed by a physician after the pregnant woman had visited a counselling centre. (§ 105 alternative draft). In this regard, the following consideration was included:

51

‘The fundamental idea behind this proposal is that the decision of a woman to terminate her pregnancy and the realisation of such decision can only be counteracted by granting the pregnant woman, within the limits of what is possible, help in overcoming the financial, social and family difficulties that have brought her to choose to terminate her pregnancy, and giving her the opportunity to make a well-considered and responsible decision through counselling and open discussion. The institution of the counselling agency should serve this purpose, (...)

52

Counselling agencies should therefore be provided the ability to offer financial, social and family assistance. Moreover, they should also provide psychological counselling from appropriately-trained personnel to the pregnant woman and her relatives and make clear to all parties that the termination of a pregnancy is not a minor matter, including in a medical context, but rather, is a serious intervention with potential far-reaching consequences and that an abortion, even undertaken with the most compelling motives, represents the destruction of nascent life, and thus interferes with and violates a great ethical responsibility’. ([...]).

53

A woman contemplating an abortion should be able to visit the counselling agency without fear that doing so would make it legally impossible to realise her intentions. A termination of a pregnancy that occurs later than three months after conception should only be exempt from criminal punishment when a medical or eugenic indication is present and the prerequisites for such an indication are set forth in a declaration by a medical expert body (§ 106 alternative draft).

54

The minority viewed this proposal as merely an indirect and inadequate protection of a nascent life that would be abandoned whenever a pregnant woman could not be convinced by a counselling agency to change her decision. Consequently, those of this opinion took the position that criminal liability for abortion should remain in place, with the exception of the first four weeks of pregnancy. However, they also envisaged an exemption from criminal punishment ‘when, in consideration of the totality of the circumstances, the continuation of the pregnancy is not reasonable for the pregnant woman’ and provided further specification with a catalogue of five indications. Further requirements for exemption from criminal liability would include the consent of the pregnant woman, a medical declaration of approval and that the abortion be carried out in the first three months after conception.

55

6. At the beginning of 1972, the Federal Government introduced the draft legislation for the Fifth Act to Reform the Criminal Law (Bundesrat document, Bundesratsdrucksache – BRDrucks 58/72). The draft retained general criminal liability for abortion. In the reasoning, it was explained that human life prior to birth was a legal interest that is worthy and in need of protection. [...] [Here], the new law must do justice to the principle of the inviolability of nascent life, but, at the same time, strike a balance between the rights of the unborn child and the human dignity of a pregnant woman and her right to the free development of her personality. In this regard, the rights of one could not take absolute precedence over the rights of the other. Solutions for exceptional, difficult conflicts between the two interests that fulfil the mandate of the decisions on values enshrined in the Constitution would depend on the circumstances.

56

[...] [W]hen all abortions within the first three months of pregnancy are sanctioned under the law[,] [...] [this] is incompatible with the system of values of the Constitution. [...]

57

Based on these considerations, the draft rejected the ‘time-limit’ solution, which was vigorously debated during the Weimar Republic and again in recent years’, and determined that exceptions to the general ban on abortion should only apply if a legal indication was present. An indication should be recognised,

58

a) when, according to medical findings, a termination of pregnancy is necessary to avert a risk to the life of the pregnant woman or severe impairment of her health insofar as such risk cannot be avoided in any other reasonable way (§ 219 – medical indication);

59

b) when, according to medical findings, compelling grounds exist for the conclusion that the child, due to a hereditary condition or other harmful influence prior to birth, suffers from irreparable damage to their health that is so serious that the continuation of the pregnancy cannot be imposed on the pregnant woman, insofar as no more than twenty weeks have elapsed since the beginning of the pregnancy (§ 219b – eugenic or child-related indication);

60

c) when a criminal act under § 176 (sexual abuse of a child), § 177 (rape) or § 179(1) (sexual abuse with inability to resist) was committed against the pregnant woman and compelling grounds exist for the conclusion that the pregnancy is a result of that act, insofar as no more than twelve weeks have elapsed since the beginning of the pregnancy (§ 219c – ethical or criminal indication);

61

d) when a termination of pregnancy is necessary to avert the risk of the pregnant woman being placed in a situation of hardship, insofar as the risk cannot be averted in any other reasonable way and when no more than twelve weeks have elapsed since the beginning of the pregnancy (§ 219d – social or hardship indication).

62

When any one of these indications are present, an abortion performed by a physician with the consent of the pregnant woman should not be subject to criminal liability under § 218. The beginning of a pregnancy, as envisaged under the law, was determined to be the completed implantation of a fertilised egg in the uterus (§ 218(5)).

63

At the same time, two members of the Bundestag, Dr. de With and Genossen, introduced a draft law to revise § 218 of the Criminal Code (BTDrucks VI/3137) that proposed to except abortions performed within the first three months of pregnancy from criminal liability, so long as they were performed by a physician following a medical consultation and with the consent of the pregnant woman (the time-limit rule).

64

[…]

65

The Federal Government did not introduce its own draft legislation during the seventh legislative period of the Bundestag. Instead, four draft laws were proposed from the floor of the Bundestag. [...]

66

[...] According to the report of the Special Committee (BTDrucks 7/1981 (new) p. 9 f.), the following considerations for the time-limit rule – initially proposed by the parliamentary groups of the SPD and the Freie Demokratische Partei (FDP) and later adopted by the Bundestag – were decisive:

67

‘In the area of criminal law, the proponents of this draft propose that for the first three months of pregnancy, the threat of criminal punishment [for abortion] should be eliminated in the interest of improving the success of counselling. This means that only the obligation to undergo comprehensive counselling and to have the procedure performed by a physician is mandated under criminal law. This also means that in the first trimester, the protection of nascent life is no longer carried out through universal threats of criminal punishment, but instead, through a counselling system, the use of which is required under threat of criminal punishment. The proponents of the time-limit rule presume that a threat of criminal punishment would only truly take ‘effect’ for abortions after the third month of pregnancy. It has been demonstrated that a universal criminal ban on abortion is not capable of protecting unborn life. A pregnant woman who wishes to terminate her pregnancy will do so regardless of considerations of the criminal law; she will in any event find a way to obtain an abortion. The ineffectiveness of criminal provisions, as explained convincingly by, inter alia, the expert statements provided in the public hearing, are caused by the fact that the decision to terminate a pregnancy as a rule arises from a difficult situation of conflict that the pregnant woman finds herself in and is a deeply personal decision, which threats of criminal punishment are unlikely to change ([...]). ….

68

The time-limit rule does not abandon the idea that unborn life is worthy of and in need of protection. The proponents of this draft are of the opinion that the criminal law in its current form is not the appropriate means [of protection]. ….

69

In the case of an abortion, counselling and assistance must (and can) be provided before the pregnant woman takes the decisive step. So long as the woman has any kind of criminal sanction to fear, she will make little use of an opportunity for counselling and assistance. A woman who, for whatever reason, seeks to terminate her pregnancy, will be far more likely to undertake the action herself or seek the services of a physician or another person who will perform the abortion without asking too many questions (…) So long as a criminal provision exists, such a woman will be difficult to reach with counselling or assistance, because she will most often only look for ‘assistance’ from those persons whom she is certain will bring her closer to achieving the desired abortion. For the most part, such women do not have contact with persons who could offer them real assistance.’

70

During the vote on the legislation [...], none of the draft laws received the necessary majority of votes. Thereafter, the two drafts proposed by parliamentary groups that received the highest amount of votes were put to a further vote. 245 members voted for the draft proposed by the SPD and the FDP parliamentary groups, while 219 members voted for the motion of the parliamentary group of the Christlich-Demokratische Union/Christlich-Soziale Union (CDU/CSU) ([...]).

71-72

[…]

73

7. On 21 March 1974, in order to support the reform of the Criminal Code through social-political measures and on an initiative by the parliamentary groups of the SPD and FDP ([...]), the Bundestag approved the Act on Supplementary Measures to the Fifth Act to Reform the Criminal Law (Strafrechtsreform-Ergänzungsgesetz). Among the provisions in the law were, inter alia, the right under statutory medical insurance and social assistance to obtain medical consultation on the rules concerning the time of conception as well as on medical assistance for abortions that are not subject to criminal liability ([...]).

74

[…]

75

8. On 21 June 1974, on the application of the Land government of Baden-Württemberg for a preliminary injunction, the Federal Constitutional Court ordered that § 218a of the Criminal Code in the version of the Fifth Act to Reform the Criminal Law not come into force on a temporary basis, but that abortions performed pursuant to the medical, eugenic or ethical indications within the first twelve weeks after conception would remain exempt from criminal punishment ([...]). The preliminary injunction was extended until the pronouncement of this judgment.

II.

76

193 members of the German Bundestag and [five] Land governments [...] have submitted an application pursuant to Art. 93(1) no. 2 of the Basic Law, § 13 no. 6 of the Federal Constitutional Court Act for a constitutional review of § 218a of the Criminal Code in the version of the Fifth Act to Reform the Criminal Law. They contend that the provision is incompatible with the Basic Law because the repeal of criminal liability for abortions during the first twelve weeks after conception (time-limit rule) is above all in violation of Art. 2(2) first sentence in conjunction with Art. 1(1) of the Basic Law, and also violates Art. 3 and Art. 6(1), (2) and (4) of the Basic Law as well as the principle of the rule of law. The applicant Land governments are further of the opinion that the Fifth Act to Reform the Criminal Law required the approval of the Bundesrat.

77-93

[…]

III.

94

From among the constitutional organs authorised pursuant to § 77 of the Federal Constitutional Court Act to submit a statement in these proceedings, the Bundestag and Federal Government provided statements. The Land government of North-Rhine Westphalia submitted that it concurs with the statement of the Federal Government.

95-123

[…]

IV.

124-126

[…]

B.

127

The Fifth Act to Reform the Criminal Law did not require the approval of the Bundesrat.

128-132

[...]

C.

133

The question of the legal status of abortion has been publicly debated from a range of perspectives for decades. Indeed, this phenomenon of social life raises manifold problems of a biological, particularly human genetic, anthropological, medical, psychological, social, socio-political and, not least, of an ethical and moral-theological nature, which touch upon the fundamental questions of human existence. The task of the legislator is to assess the arguments developed from these different points of view, which are in many ways intertwined, to supplement them with specific legal-political considerations and the practical experience of the legal system and, on this basis, to reach a decision as to how the legal system should address this social matter. The provisions in the Fifth Act to Reform the Criminal Law, which were adopted following exceptionally extensive preparatory work, can only be assessed by the Federal Constitutional Court from the perspective of whether the provisions are compatible with the Basic Law, which is the highest law in the Federal Republic of Germany. The weight and seriousness of the constitutional questions presented become clear upon consideration that this issue concerns the protection of human life, a central value of every legal order. The determination of the standard and the limitations of legislative decision-making requires an overall assessment of the constitutional provisions and the system of values that is derived therefrom.

I.

134

1. Art. 2(2) first sentence of the Basic Law protects a developing life in the womb as an independent legal interest.

135

a) The explicit incorporation of a right to life in the Basic Law – in contrast to the Weimar Constitution – can be explained primarily as a reaction to the ‘destruction of life deemed unworthy of life’, the ‘final solution’ and ‘liquidation’ that were carried out by the Nazi regime as state policy. Like the abolition of the death penalty set out in Art. 102, Art. 2(2) first sentence of the Basic Law constitutes a ‘recognition of the fundamental value of human life and a state concept that stands in emphatic opposition to the views of a political regime that saw little value in individual human life and, with arrogated authority over the life and death of its citizens, committed unlimited acts of abuse’ (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 18, 112 <117>).

136

b) The interpretation of Art. 2(2) first sentence of the Basic Law flows from its wording: ‘Every person shall have the right to life (...)’. According to established biological and physiological findings, life, in the sense of the existence of a human individual, exists in all cases following the fourteenth day after conception (nidation, individuation) ([...]). The process of development thereby commenced is a continuing process that does not consist of any distinct turning points and does not lend itself to a precise delineation of the various stages of development in human life. Nor does it end at birth; the phenomena of consciousness specific to the human personality, for example, first appear only a considerable time after birth. For these reasons, the protection of Art. 2(2) first sentence of the Basic Law cannot be limited to ‘complete’ persons after their birth or nascituri capable of life outside the womb. The right to life is provided to all who ‘live’; no distinction can be made as between individual stages of developing life prior to birth or as between unborn life or life after birth. ‘Every person’ in the sense of Art. 2(2) first sentence of the Basic Law is ‘every living person’, put another way: every human individual possessing life. ‘Every person’ thus includes human beings that are not yet born.

137

c) Contrary to the objection that ‘every person’ commonly denotes, both in colloquial and legal language, a ‘complete’ person and that a purely literal interpretation therefore argues against the inclusion of unborn life within the effective scope of Art. 2(2) first sentence of the Basic Law, it must be emphasised that the sense and purpose of this provision of the Basic Law require that the protection of life also be extended to developing life. The protection of human existence from state interference would be incomplete if it did not encompass the preliminary stages of a ‘complete person’, i.e. unborn life.

138

This comprehensive interpretation reflects the principle set out in the case-law of the Federal Constitutional Court that ‘in cases of doubt, the interpretation that gives the greatest legal effect to the fundamental right in question should be chosen’ (BVerfGE 32, 54 <71>; 6, 55 <72>).

139

d) The legislative history of Art. 2(2) first sentence of the Basic Law also supports this conclusion.

140

On 11 January 1949, after the parliamentary group of the Deutsche Partei (DP) had repeatedly submitted their proposal for an explicit reference to ‘germinating life’ in connection with the right to life and physical integrity ([...]), the Parliamentary Council conferred on this matter for the first time during the thirty-second sitting of its Committee on Fundamental Policy Issues. In discussing whether the Basic Law should include a provision to prohibit medical procedures that do not serve healing purposes, member of the Bundestag Dr. Heuss (FDP) stated, without encountering any contradiction, that considerations should be made of forced sterilisation and, in the case of the right to life, of abortion. In the forty-second sitting on 18 January 1949, as part of the second reading concerning fundamental rights ([...]), the main committee of the Parliamentary Council engaged itself with the question of including nascent life within the protection of the Constitution. Member of the Bundestag Dr. Seebohm (DP) submitted that the then-current version of Art. 2(1) of the Basic Law should include the following two sentences: ‘Germinating life shall be protected’ and ‘the death penalty shall be abolished’. Dr. Seebohm explained that the right to life and physical integrity might not necessarily include germinating life and, for this reason, an explicit reference to such protection should be made. At the very least, to the extent a differing opinion on the matter exists, it should be expressly set out that the right to life and physical integrity includes germinating life.

141

Speaking on behalf of the CDU/CSU parliamentary group, member of the Bundestag Dr. Weber stated that her parliamentary group’s stance on the right to life means life per se and that germinating life and above all the protection of the germinating life is contained therein ([...]). Dr. Heuss (FDP) agreed with Dr. Weber that the reference to life also included germinating life, but stated that matters that were to be regulated through the Criminal Code should not be included in the Constitution. Consequently, he found the express reference to germinating life and to the death penalty to be redundant ([...]).

142

‘Following the undisputed statement that germinating life is included within the right to life and physical integrity’, Dr. Seebohm withdrew his application ([...]). However, member of the Bundestag Dr. Greve (SPD) stated: ‘I must state for the record here, that at least as far as I am concerned, I do not understand the right to life to also extend to germinating life. I can make a statement to the same effect for my friends, at least, for the very large majority of them, to make a record that the main committee of the Parliamentary Council as a whole does not share the opinion just expressed by my colleague Dr. Seebohm.’ The application of Dr. Seebohm, which was resubmitted, was rejected by a vote of 11 to 7. ([...]). In the written report of the main committee ([...]) Bundestag member Dr. von Mangoldt (CDU) nevertheless stated as to Art. 2 of the Basic Law: ‘With regard to the guarantee of the right to life, germinating life should also be protected. The particular sentence concerning the protection of germinating life in the application submitted by the DP in the main committee did not find a majority because the predominant view of the committee was that the interest was already protected under the current version of the text’.

143

On 6 May 1949, the plenary of the Parliamentary Council approved Art. 2(2) of the Basic Law in the second reading with two votes in dissent. At the third reading on 8 May 1949, both Dr. Seebohm as well as Dr. Weber expressed the view that in their opinion, Art. 2(2) of the Basic Law also included germinating life within the scope of protection provided by the fundamental right. Both speakers remained of this opinion without any objection.

144

The legislative history of Art. 2(2) first sentence of the Basic Law suggests that the words ‘every person has the right to life’ should also include ‘germinating’ life. In any event, there is less support for the opposite conclusion that can be drawn from the material. On the other hand, there are no indications of an answer to the question of whether unborn life must be protected by criminal law.

145

e) While there was unanimity during the deliberations on the Fifth Act to Reform the Criminal Law as to the issue of whether unborn life was worthy of protection, the constitutional dilemma was not completely resolved. The report of the Special Committee for Criminal Law Reform on the draft legislation submitted by the SPD and FPD states, among other things:

146

‘Unborn life is a legal interest that must in principle be respected in the same manner as life after birth.

147

This determination is self-evident in the case where the unborn child is capable of living outside of the womb. It is, however, also true in the earlier stage of developing life occurring approximately fourteen days after conception, as [expert] Hinrichsen and others convincingly substantiated in their statements. (...) It is the overwhelming view of the medical, anthropological and theological scholarship that there is no comparable discernible turning point in the rest of the development process. (...)

148

It is therefore impermissible to negate or treat with indifference unborn life that has completed nidation. The controversial question in the literature as to whether and, if so, to what extent the Basic Law includes unborn life in its protection need not be answered at this point. In any case, other than the extreme views of individual groups, it is part of the legal understanding of the general public that unborn life is a legal interest of high rank. This legal understanding forms the basis for this draft’.

149

([…])

150

The committee reports on the other draft laws are almost identical in this regard ([…]).

151

2. The duty of the state to protect every human life can be derived directly from Art. 2(2) first sentence of the Basic Law. Moreover, it also arises from the express provision in Art. 1(1) second sentence of the Basic Law, because the developing life is also subject to the protection that Art. 1(1) grants to human dignity. Where human life exists, it has human dignity; whether the bearer of this dignity is aware of or able to recognise it is not determinative. The potentiality inherent in a human being from the very beginning is sufficient to give rise to human dignity.

152

3. However, the issue of whether the nasciturus is itself a holder of fundamental rights or, on account of a lesser capacity to possess legal and fundamental rights, is ‘only’ protected by the objective provisions of the Constitution with respect to its right to life, which has been heavily debated in legal scholarship, in case-law and in the present proceedings, need not be decided. According to the established case-law of the Federal Constitutional Court, the fundamental rights provisions include not only subjective rights of an individual against state interference, but also incorporate an objective system of values that serve as core constitutional precepts that apply to all areas of the law and provide guidelines and a driving force for legislation, administration and jurisprudence. (BVerfGE 7, 198 <205> – Lüth –; 35, 79 <114> – Judgment on Higher Education Institutions – with further references). Whether and, if so, to what extent the state is constitutionally obligated to protect nascent life can therefore be determined from existing objective legal guarantees of fundamental rights provisions.

II.

153

1. The state’s duty of protection is comprehensive. It not only – self-evidently – forbids direct state interference with developing life, but also obligates the state to act in a protective and supportive manner with regard to such life. This means, above all, that it must protect against unlawful interference by others. The individual areas of the legal order must be, in accordance with their particular purpose, consistent with this directive. The higher the rank of the legal interest at issue within the system of values of the Constitution, the greater the state’s corresponding duty of protection. Within the system of values in the Basic Law, human life is of the highest order, the particulars of which need not be established. It is the vital basis of human dignity and the prerequisite for all other fundamental rights.

154

2. The obligation of the state to provide protection to developing life also applies in regard to the mother. The natural connection between an unborn life and a mother is unquestionably an extraordinary relationship that is without parallel in all other aspects of life. Pregnancy is part of the private sphere of a woman, which is constitutionally protected under Art. 2(1) in conjunction with Art. 1(1) of the Basic Law. If an embryo were to be viewed merely as a part of the maternal organism, then abortion would be entirely a matter of private life in which the legislator could not intrude (BVerfGE 6, 32 <41>; 6, 389 <433>; 27, 344 <350>; 32, 373 <379>). However, because the nasciturus constitutes a human life that is subject to protection under the Constitution, abortion encompasses a societal dimension that makes it subject to and in need of regulation by the state. The right of a woman to the free development of her personality, which consists of freedom of action in a comprehensive sense, also encompasses her own individual responsibility in deciding against parenthood and its attendant obligations and can also likewise demand recognition and protection. This right, however, is not guaranteed without restriction – it is subject to limitations arising from the rights of others, the constitutional order and moral law. A priori, this right can never include the authority to intervene in, or even destroy, along with life itself, the protected legal sphere of another without justification, least of all when, in the nature of things, a special responsibility exists for this life.

155

A balance that affords protection to the nasciturus while allowing the pregnant woman the freedom to terminate the pregnancy is not possible, as an abortion always involves the destruction of the unborn life. In the required weighing of interests, ‘both constitutional values must be viewed in light of their connection to human dignity as the centre of the Constitution’s system of values’ (BVerfGE 35, 202 <225>). Following the directive of Art. 1(1) of the Basic Law, the decision must be that protecting the life of the foetus takes precedence over the pregnant woman’s right to self-determination. This decision can result in numerous impairments to opportunities for personal development due to pregnancy, childbirth and the raising of the child. However, an unborn life is destroyed by an abortion. For these reasons, following the principle of the least intrusive balancing of opposing protected interests under the Constitution, with consideration of the fundamental concept of Art. 19(2) of the Basic Law, the protection of the life of the nasciturus must be given precedence. This precedence in principle applies for the duration of the pregnancy and cannot be set aside for any particular time period. The opinion expressed in the Bundestag during the third round of deliberations on criminal law reform that the precedence ‘of the woman's right to self-determination that flows from human dignity takes priority over everything else, including the child’s right to life, for a certain period of time’ ([...]), is not compatible with the constitutional system of values.

156

3. Based on these considerations, the constitutionally required stance of the legal order as it relates to abortion becomes evident: The legal order cannot base its provisions solely on the woman’s right to self-determination. The state must in principle presume an obligation to continue a pregnancy and regard its termination as an injustice. Disapproval of abortion must be clearly expressed in the legal order. The false impression that an abortion is the social equivalent of visiting a physician for the purposes of healing an illness or a legally inconsequential alternative to contraception must be avoided. The state cannot relinquish its responsibility through the recognition of a ‘legal vacuum’ in which it abstains from judgment and leaves the matter to the individual’s own determination.

III.

157

It is first and foremost for the legislator to determine how the government fulfils its obligation to effectively protect developing life. It decides what protective measures are expedient and necessary to ensure that life is effectively protected.

158

1. The guiding principle of the precedence of prevention over repression applies in particular to the protection of unborn life (cf. BVerfGE 30, 336 <350>). It therefore falls to the state to establish, first and foremost, social-political and welfare measures for the protection of nascent life. How this is achieved, and how the measures of assistance are designed in detail, is largely left to the legislator and generally outside the scope of review of a constitutional court. In this regard, the primary consideration is to strengthen the readiness of the expectant mother to accept the pregnancy as her own responsibility and bring the nasciturus to full life. Regardless of how the state fulfils its duty to protect, we should not lose sight of the fact that the developing life is entrusted by nature first and foremost to the protection of the mother. The principal goal of the efforts of the state to protect life should be to reawaken the maternal instinct to protect where it is lost, and to strengthen it as necessary. Of course, the ability of the legislator to exert influence in this regard is limited. The measures enacted will often become effective only indirectly and after a period of time through comprehensive educational work and the resulting change in social attitudes and views.

159

2. The question of the extent to which the state is constitutionally obligated to employ criminal law, the strongest means available to it, as a means of protection for unborn life cannot be answered from the simplistic perspective of whether the state must punish certain actions. An overall assessment is necessary, one which takes into consideration the value of the lost legal interest and the measure of social damages caused by the infringement – also in comparison with other actions that are subject to punishment and are considered similarly from a social and ethical perspective – on the one hand, and the traditional legal regulation of this area of life as well as the evolution of ideology concerning the role of criminal law in modern society on the other hand and, finally, one that does not disregard the effectiveness of criminal punishments in practice and the potential for their substitution through other legal sanctions.

160

In principle, the legislator is not required to make use of the same measures of criminal punishment for the protection of unborn life that it deems expedient and necessary for the protection of life after birth. As a glance at legal history demonstrates, this has never been the case with the use of criminal sanctions, nor was it the case with the legal situation that existed prior to the Fifth Act to Reform the Criminal Law.

161

a) The function of criminal law has always been to protect the fundamental values of the community. As set forth above, the life of each individual person belongs to the most important of legal interests. The termination of a pregnancy irrevocably ends a developing human life. Abortion is an act of killing; this is most clearly testified to by the fact that the punishment relating thereto – even in the Fifth Act to Reform the Criminal Law – is contained in the section ‘Felonies and Misdemeanours against Life’, and in the previous criminal law was designated as ‘killing of the fruit of the womb’ – the now commonly-used designation of ‘abortion’ cannot disguise this fact. No legal provision can pass over the fact that this act offends the fundamental inviolability and indisposability of human life protected by Art. 2(2) first sentence of the Basic Law. From this perspective, the use of the criminal law to punish ‘acts of abortion’ is undoubtedly legitimate; it is valid law in most civilisations – under various conditions – and corresponds particularly with the German legal tradition. It therefore follows that the law cannot just dispense with clearly labelling this procedure as an ‘injustice’.

162

b) Punishment, however, can never be an end in and of itself. Its use is, in principle, subject to the decision of the legislator. The legislator is not prohibited from expressing the required general legal disapproval of abortion by means other than criminal punishment, when observing the aspects set out above. The decisive factor is whether the totality of the measures aimed at protecting the unborn life, whether they are private law, public law or, in particular, social law or criminal law, guarantees actual protection that corresponds to the importance of the legal interest to be protected. In extreme cases, namely, when the constitutionally mandated protection cannot be achieved in any other way, the legislator is obligated to enact legislation for criminal punishment to protect developing life. Criminal law provisions represent the ‘ultima ratio’, as it were, of the tools available to the legislator. According to the principle of proportionality under the rule of law, which is the guiding principle of public law, including constitutional law, the use of these measures must be undertaken with care and restraint. However, this last resort must be employed when effective protection of life cannot be achieved otherwise. This is required by the value and significance of the protected legal interest. There is thus not an ‘absolute’ duty to punish, but rather, a duty to enact criminal punishment that arises ‘in relation to’ the inadequacy of all other means.

163

In contrast, the objection that the state’s duty to punish can never be derived from a fundamental right which grants freedom is invalid. When the state has an obligation under a fundamental precept of values to protect a significantly important legal interest from interference by others, measures that affect the domain of freedom of other holders of fundamental rights will often be unavoidable. In this respect, the legal situation relating to criminal law provisions is no different from the application of social or civil law. At most, differences exist only in regard to the intensity of the necessary interference. Nevertheless, the legislator must resolve the inherent conflict by balancing the two fundamental values or domains of freedom that are in opposition with one another according to the constitutional system of values and in observance of the principle of proportionality under the rule of law. If there were no obligation to employ criminal law provisions, then the protection afforded to life would be substantially limited. The severity of the applicable sanction corresponds to the value of the legal interest threatened by destruction – criminal punishment corresponds to the fundamental value of human life.

164

3. The obligation of the state to protect nascent life also extends – as discussed above – to the mother. Here, however, the application of criminal law would pose particular problems, given the unique situation of a pregnant woman. The dramatic effects that pregnancy has on the physical and mental state of the woman are clear and need not be further detailed. They most often result in a significant change in her way of life and restrict opportunities for personal development. These burdens are not always and not fully compensated by the woman finding a new sense of fulfilment through her role as a mother or by the entitlement to the protection and care of the community (Art. 6(4) of the Basic Law). In this regard, there can be difficult, even life-threatening situations in individual cases. The right to life of the unborn child can lead to a burden on the woman that goes beyond what is normally associated with pregnancy. This raises the question of reasonableness, in other words, the question of whether the state in such cases should enforce the continuation of the pregnancy by means of criminal punishment. A conflict arises between respect for the unborn life and the right of the woman to not be forced beyond a reasonable sacrifice of her own valid interests in order to protect this legal interest. In such a situation, where no clear moral judgment can generally be made and where the decision to terminate a pregnancy can be comparable to a decision to be made in accordance with the dictates of conscience, the legislator has a particular obligation to act with restraint. When the legislator views the conduct of a pregnant woman as not criminally culpable and avoids the application of criminal punishment, this is in any case to be accepted under constitutional law as the result of a balancing exercise that is incumbent on the legislator.

165

However, circumstances that do not overly burden the person subject to the obligation should not be part of the substantive criteria of reasonableness, since they represent the normal situation with which everyone must contend. Rather, there must be circumstances of considerable weight that make it extremely difficult for the person affected to fulfil their duty, such that they cannot reasonably be expected to do so. In particular, these exist when the duty to be fulfilled places the affected person in a difficult inner conflict. The resolution of such conflict through criminal punishment generally does not appear to be reasonable (cf. BVerfGE 32, 98 <109> – Faith healers), since it applies external coercion to a situation where respect for the right of personality requires full inner freedom of decision.

166

The continuation of a pregnancy appears particularly unreasonable when termination is necessary in order ‘to avert a risk to the life [of the pregnant woman] or severe impairment of her health’ (§ 218b(1) Criminal Code in the version of the First Act to Reform  the Criminal Law). In this case, the pregnant woman’s own ‘right to life and physical integrity’ (Art. 2(2) first sentence of the Basic Law) comes into play, and self-sacrifice for the unborn life cannot be expected from her. Furthermore, the legislator has discretion to identify other extraordinary difficulties for a pregnant woman that are equally severe as those set forth in § 218b(1) of the Criminal Code and to decide not to impose criminal punishment for the termination of the pregnancy in these cases. The cases of eugenic (cf. § 218b(2) Criminal Code), ethical (criminal) and the social or hardship indications for an abortion that were raised in the draft law submitted by the Federal Government during the sixth legislative period of the Bundestag and in both public discussions and the course of the legislative proceedings could be included in this category. During the deliberations of the Special Committee for Criminal Law Reform ([...]), the representative for the Federal Government explained comprehensively and with convincing reasoning why the continuation of a pregnancy in these four situations did not appear reasonable. The decisive factor is that in each of these cases, another legal interest that equally merits protection from a constitutional perspective asserts itself with such urgency that the legal order of the state cannot require the pregnant woman to give priority to the rights of the unborn child under the circumstances.

167

The indication of general hardship (social indication) can also be placed within this category. Conflicts can arise in the general social situation of a pregnant woman and her family that are so severe that sacrifices for the benefit of the unborn life beyond a certain level cannot be coerced from the pregnant woman by the threat of criminal punishment. In regulating this indication, the legislator must set out the constituent elements for exception from criminal culpability in a manner that makes the degree of severity of the applicable social conflict apparent and – in consideration of the perspective of unreasonableness – maintains consistency with respect to the other indications. When the legislator excludes true cases of conflict of this kind from criminal culpability, it does not violate the duty to protect life. Even in these cases, the state cannot be content with a mere review or attestation that the legal requirements for an abortion that is not subject to criminal punishment are present. Instead, the state is expected to offer counselling and assistance with the goal of urging the pregnant woman to comply with the fundamental obligation to respect the right to life of the unborn, encouraging her to continue the pregnancy and to provide her – especially in cases of social hardship – with practical support.

168

In all other cases, the termination of a pregnancy remains a criminally punishable injustice, as it constitutes the destruction of a legal interest of the highest order at the convenience – as opposed to a situation of exigency – of another. If the legislator wished to abstain even in these cases from criminal prosecution, this would only be compatible with the mandate of protection under Art. 2(2) first sentence of the Basic Law if there were another equally effective means of legal sanction that would underscore the unjust character of the act (disapprobation through the legal order) and likewise prevent abortion as effectively as a criminal provision.

D.

169

When the challenged time-limit rule of the Fifth Act to Reform the Criminal Law is assessed under this standard, the resulting conclusion is that the provision does not observe the obligation to protect nascent life derived from Art. 2(2) first sentence in conjunction with Art. 1(1) of the Basic Law to the extent mandated thereby.

I.

170

The constitutional mandate to protect developing life is directed first and foremost to the legislator. However, it falls to the Federal Constitutional Court, in carrying out the function assigned to it by the Basic Law, to determine whether the legislator has complied with this mandate. The Court must be careful to respect the legislator’s leeway in assessing the factual circumstances on which its legislation is based, the prognosis that might be required and the legislator’s choice of means. The Court may not take the place of the legislator; nevertheless, it is tasked with determining whether the legislator has taken the necessary steps, within the means available to it, to avert risks to the legal interest to be protected. This also applies in principle to the question of whether the legislator is obligated to make use of the most severe sanction available to it, the criminal law, although this assessment cannot extend to the individual modalities of the criminal punishment.

II.

171

It is generally recognised that the prior § 218 of the Criminal Code has not provided adequate protection for developing life precisely because it threatened punishment without differentiation for abortion in nearly all cases. The view that there are cases in which criminal sanctions are not appropriate has led to the point where even cases truly worthy of criminal punishment were not prosecuted with the necessary vigour. In addition, an investigation of the facts of the case is often difficult due to the nature of the offence. Certainly, the figures on the number of unreported cases of abortions vary widely, and it appears nearly impossible to obtain reliable data on the matter through empirical studies. In any case, the number of illegal abortions performed in the Federal Republic of Germany was high. The existence of a general criminal provision appears to have also contributed to this, in that the state has neglected to make use of other measures sufficient for the protection of nascent life.

172

The legislator’s approach to the Fifth Act to Reform the Criminal Law in its final form was based on the guiding principle of prioritising preventive measures over repressive sanctions (cf. in this regard, the motion for a resolution made by the parliamentary group of the SPD and FDP approved by the Bundestag in connection with the adoption of the Fifth Act to Reform the Criminal Law – BTDrucks. 7/2042). The law is based on the idea that nascent life will be better protected by providing personal counselling to the pregnant woman rather than the threat of criminal punishment, which eliminates the possibility of dissuading those women who seek abortions, is flawed in terms of criminal policy and, in any event, has proven to be ineffective. From these findings, the legislator concluded that, subject to certain requirements, the threat of punishment for abortion within the first twelve weeks of pregnancy should be abandoned altogether and that preventive counselling and information (§§ 218a and 218c) should be introduced instead.

173

When the legislator seeks to fulfil its obligation to better protect unborn life through preventive measures, including counselling that strengthens the woman’s sense of responsibility for its protection, that is constitutionally unobjectionable and to be approved. This notwithstanding, the provisions enacted give rise to substantial constitutional concerns in many respects.

174

1. The constitutionally mandated disapprobation of abortion must be clearly set out in the statutory law. There can be exceptions – as discussed above – but only for those cases in which the continuation of the pregnancy is unreasonable for the woman after considering the decision on values to be made under Art. 2(2) first sentence of the Basic Law. The provisions relating to abortion in the Fifth Act to Reform the Criminal Law do not reflect this, because, given the repeal of punishment under § 218a of the Criminal Code, the law leaves it unclear as to whether abortions that do not fall under one of the indications are right or wrong. This is the case regardless of the fact that § 218a of the Criminal Code constitutes an exception to the general criminal prohibition of § 218 of the Criminal Code, and also regardless of which view one takes on the question of whether the provision restricts the constituent elements of § 218 of the Criminal Code, whether it creates a ground for justification or, finally, merely constitutes an exemption from culpability or criminal punishment. An unbiased reader of the provision would have the impression that, through the general repeal of punishment, § 218a completely eliminates the legal condemnation – no matter what the circumstances – and permits the termination of pregnancy under the conditions specified therein. Conversely, the constituent elements of § 218 of the Criminal Code effectively recede into insignificance, as experience shows that by far the majority of abortions – over 9 out of 10, according to the government representative ([...]) – are performed in the first twelve weeks. The picture that emerges is one of a nearly complete decriminalisation of abortion ([...]). No other provision of the Fifth Act to Reform the Criminal Law indicates that a non-indicated abortion in the first twelve weeks of pregnancy continues to be legally disapproved. In particular, Art. 2 of the Act, according to which no person is in principle obliged to assist in an abortion, says nothing about the legality or illegality of such a measure. This provision is primarily intended to take into account the freedom of conscience and to protect the freedom of ethical conviction of those who are faced with the question of whether they can or should actively assist in an abortion that is not punishable under § 218a of the Criminal Code.

175

A review of the social law provisions in the Act on Supplementary Measures to the Fifth Act to Reform the Criminal Law also inescapably leads to the conclusion that abortion in the first twelve weeks of a pregnancy is a procedure that is not legally reprehensible and therefore is also supported in terms of social law and may be made easier to obtain. A statutory right to social benefits presupposes that the factual basis upon which the benefits are to be granted does not constitute a legally prohibited (disapproved) act. The overall legal framework can therefore only be interpreted in such a way that abortions performed by a physician during the first twelve weeks of pregnancy should not be illegal, i.e. they should be permitted (by law).

176

This was also the view taken by the Federal Government in the bill introduced in the 6th legislative period of the German Bundestag; in which it is stated in the explanatory memorandum with regard to Art. 1 (BTDrucks. VI/3434 p. 9):

177

‘While the legislator can, in other areas, rely on the fact that the lifting of criminal prohibitions will not be understood as legal approval of conduct that was previously punishable, there are special considerations to be taken into account when amending the criminal provisions pertaining to abortion: The time-limit rule can only fulfil the expected functions of healthcare policy when all abortions in the first three months are viewed as legally permissible. It must be possible for the procedure to be carried out as part of general medical care. The contract governing medical treatment must be effective. Not least because of the inapplicability of §§ 134, 138 of the Civil Code, [which collectively provide that a legal transaction that is contrary to statutory prohibition or public policy is void], these and other circumstances could only be construed in the sense that the legal system recognises such an intervention before the end of the three-month period as a normal social occurrence’.

178

The representative of the Federal Government expressed a similar view before the Special Committee on Criminal Law Reform ([...]):

179

‘This much is important to note: With the framework of the time-limit rule, a medical abortion in the first trimester of pregnancy is not illegal and is permissible. Only in this way can its integration into the system of criminal law – including exemption from punishment for those who assist in an abortion and exclusion of emergency aid – be justified, and only in this way can the implications under civil law – the validity of the contract governing medical treatment despite § 134 of the Civil Code, the promotion of the procedure in terms of health law and, above all, the planned incorporation [of medical abortion] into the social insurance system through the Act on Supplementary Measures to the Fifth Act to Reform the Criminal Law – be justified’.

180

2. A formal, statutory disapprobation of abortion also would not be sufficient, because a woman determined upon having an abortion will disregard it. The drafters of the Fifth Act to Reform the Criminal Law, recognising that positive measures are also necessary to protect nascent life, replaced the criminal provision applicable to abortions performed by a physician with the consent of the pregnant woman with a counselling system pursuant to § 218c of the Criminal Code. However, complete repeal of criminal liability results in a gap in protection that, in a not insignificant number of cases, removes all protection for the developing life by surrendering it to the complete power of disposal of the woman. There are many women who are determined from the outset to terminate their pregnancies without a justifiable reason under the constitutional value system and who would not be receptive to counselling as envisaged under § 218c(1). These women are not experiencing a situation of economic hardship or a severe psychological conflict. They do not want the pregnancy because they are unwilling to take on the sacrifices and natural maternal obligations that are associated with it. While they may have meaningful reasons for their position, these are not reasons that can override the mandate to protect human life. In accordance with the principles explained above, it is reasonable to expect these women to continue the pregnancy. The conduct of this group of women, who have no constitutionally significant grounds for a legally justified abortion, is excused under § 218a of the Fifth Act to Reform the Criminal Law. The developing life is left unprotected to their arbitrary discretion.

181

In response to the above, the objection has been raised that women who are not receptive to influence usually know from experience how to evade punishment, such that the threat of criminal punishment is largely ineffective. In addition, the legislator is presented with the dilemma that preventive counselling and repressive criminal sanctions are to a certain extent mutually exclusive in their effectiveness at protecting life: Due to their deterrent effect, the threat of criminal sanctions and the indication solution would appear to prevent terminations of pregnancy that lack grounds for justification to a certain extent. At the same time, however, in other cases where lives might be saved, the threat of criminal punishment is a hindrance, as women who might be receptive to influence are deterred from counselling. It is these women in particular, for whom the prerequisites for an indication are missing and who do not trust the outcome of the process to determine whether an indication exists, who would as a precaution keep their pregnancy a secret, given the threat of punishment, and, as a result, cannot be reached by any helpful influence from the community or counselling centres. According to this view, there cannot be a complete protection of unborn life. The legislator has no choice but to weigh life against life, namely, the life likely to be saved by a particular law regarding abortion, against the life likely to be sacrificed by the same law; because the threat of criminal punishment not only protects unborn life, it also results in its destruction. Since there can be no solution that decisively better serves the protection of individual life, the legislator did not exceed its limits under constitutional law by enacting the time-limit rule.

182

a) This view does not do justice to the nature and function of criminal law. In principle, criminal provisions are directed at all who are subject to the law and imposes duties on them in the same way. It is true that law enforcement authorities almost never succeed in bringing all perpetrators who violate the criminal law to justice. The number of cases that go unpunished varies among the various criminal offences. It is undisputed that this number is particularly high with respect to abortion. However, the basic preventative function of criminal law should not be forgotten. If one views the mission of criminal law as the protection of particularly important legal interests and fundamental values of society, then this function is of particular importance. Just as important as the observable reaction in the individual case is the general deterrent effect of a criminal provision, which, in its basic normative content (‘abortion is punishable’), has existed for a very long time. The mere existence of such a criminal sanction has an influence on the conceptions and conduct of the population ([…]). Knowledge of the legal consequences that follow from a transgression creates a threshold from which many will recoil. The opposite effect will result if, through a general abolition of criminal liability, conduct that is without a doubt worthy of punishment is declared to be legally without objection. This is bound to confuse the popular notions of ‘right’ and ‘wrong’. The purely theoretical pronouncement that abortion is ‘tolerated’, but not ‘approved’, must remain without effect so long as there is no recognisable legal sanction that clearly separates the justified cases of abortion from the reprehensible. If the threat of punishment disappears in its entirety, it will necessarily give rise to an impression in the minds of the citizenry that abortion is legally permitted in all cases and therefore, even from a socio-ethical point of view, no longer to be disapproved. The ‘dangerous inference of moral acceptability from the absence of legal sanction’ ([…]) is too obvious for a large number of those subject to the law not to draw it.

183

This corresponds to the view taken by the Federal Government in the explanatory memorandum to the bill introduced in the sixth legislative period of the German Bundestag ([...]):

184

‘The time-limit rule would lead to a diminishment in the general awareness of the need to protect unborn life during the first three months of pregnancy. It would promote the view that abortion, at least in the early stages of pregnancy, is just as much at the free disposition of the pregnant woman as contraception. Such a view is incompatible with the system of values in the Constitution’.

185

b) The generalised weighing of life against life, which leads to the approval of the destruction of a supposedly smaller number in the interest of preserving a supposedly larger number, is not compatible with the obligation to protect each distinct individual life.

186

In its case-law, the Federal Constitutional Court has developed the principle that the unconstitutionality of a provision that disadvantages a certain group of persons in terms of its structure and actual effect cannot be refuted by a showing that the provision, or other provisions of the law, favours another group of persons. Even less persuasive is an emphasis on a provision’s overall favourable tendency toward legal protection. This principle (cf. BVerfGE 12,151 <168>; 15, 328 <333>; 18, 97 <108>; 32, 260 <269>) applies particularly in the case of the highest personal legal interest of life. The protection of individual life cannot be abandoned in the pursuit of the commendable goal of saving other lives. Every human life – even a developing one – is of value in and of itself and therefore cannot be subjected to any kind of differentiating evaluation, much less numerical weighing.

187

The view of the function of constitutional law that is identifiable in the foundational legal policy of the Fifth Act to Reform the Criminal Law cannot be followed. The constitutionally-mandated legal protection for individual human life is set aside in favour of a more ‘social engineering’-oriented use of the law as a targeted action by the legislator to achieve a certain desirable socio-political goal, the ‘containment of the abortion scourge’. The legislator, however, must not only have the goal in mind, no matter how desirable it may be; it must remember that at every step along the way, its actions must be justified under the Constitution and its indispensable postulates. The protection of fundamental rights in an individual case cannot be sacrificed for the overall efficiency of a provision. A law is not just an instrument to be used to steer social processes according to sociological research and prognoses, it is also a lasting impression of the socio-ethical and consequent legal judgment of human conduct; it should set out what is right and wrong in the individual case.

188

c) An ‘overall accounting’ – which is to be rejected in the first place – is also lacking a reliable factual basis. There is an insufficient basis for the conclusion that the number of pregnancies terminated in the future will be substantially lower than under the previous legal framework. On the contrary, the conclusion reached by the representative of the Federal Government before the Special Committee on Criminal Law Reform ([...]), on the basis of very detailed considerations and comparisons, was that an increase of 40% in the total number of legal and illegal abortions can be expected in Germany after the introduction of the time-limit rule. However, this calculation was put into doubt by Prof. Dr. Dr. Jürgens in his testimony at the oral hearing. Nevertheless, statistics from other countries, particularly from England following the entry into force of the Abortion Act of 1967 ([...]) and from the German Democratic Republic after the enactment of the Act on the Termination of Pregnancy of 9 March 1972 ([...]) do not indicate that a substantial decrease in the number of abortions would occur. Given the high value of the legal interest to be protected, experiments on this hypothesis are not permissible.

189

Meanwhile, representatives of all parties on the Special Committee for Criminal Law Reform chose not to apply statistics from abortions in other countries to the Federal Republic of Germany ([...]); the effects of different social structures, mentalities, religious ties and conduct could hardly be taken into account. But even if one assumes that all the particularities of the situation in the Federal Republic of Germany weigh in favour of the time-limit rule, an increase in abortions is to be expected because – as explained – the mere existence of the criminal provision in § 218 of the Criminal Code has had an influence on the conceptions and conduct of the population. It is significant that, as a result of criminal liability, the possibility of obtaining an abortion at all, let alone at the current state of the art, has so far been considerably restricted (inter alia, financially). In any case, the ability of the time-limit rule to even provide a quantitative increase in the protection of life is not apparent.

190

3. The counselling and information for pregnant women that is provided for in § 218c(1) of the Criminal Code cannot be considered, even in isolation, as suitable to encourage the continuation of a pregnancy.

191

The measures set out in this provision fall short of those set out in the alternative draft Criminal Code developed by the 16 legal scholars, on which the conception of the Fifth Act to Reform the Criminal Law is largely based. The counselling agencies contemplated in that document (in § 105(1) no. 2) would have the means to offer financial, social and family help. They are also intended to provide the pregnant woman and her relatives with psychological care through suitable staff and work intensively towards the continuation of the pregnancy ([...]).

192

Equipping the counselling centres in line with these or similar proposals such that they could provide direct help should have been all the more obvious as, according to the report of the Special Committee for Criminal Law Reform ([...]), an unfavourable housing situation, the impossibility of caring for a child while also participating in training or gainful employment, economic hardship and other financial reasons, including the fear of social sanctions among unmarried pregnant women, are said to be among the most frequently mentioned causes and motives for the desire to undergo an abortion.

193

In contrast, the counselling centres are designed to provide information about ‘available public and private assistance for pregnant women, mothers, and children’, ‘especially assistance that will facilitate the continuation of the pregnancy and the situation of mother and child’. This could be interpreted to mean that the counselling centres are only supposed to provide information without specifically exerting influence on the motivational process. The question of whether the neutral description of the task of the counselling centres is due to the fact that the Special Committee for Criminal Law Reform took the view that the counselling should not influence the pregnant woman's decision ([...]) can be left open. In any case, such an influence is crucial if the counselling is to have a protective effect in favour of the nascent life. § 218c(1) no. 1 and 2 also allow for the interpretation that counselling and information should persuade the pregnant woman to carry her pregnancy to term. In this respect, the report of the Special Committee ([...]) likely should be understood to mean that the counselling should take into consideration the totality of the living conditions of the pregnant woman and take place on an individual and in-person basis, rather than by a telephone call or by handing out printed materials ([...]).

194

Even if one might conceivably consider that such counselling could have a certain persuasive effect on the decision to terminate a pregnancy, the deficiencies in how the counselling program is to be carried out on an individual basis indicate that nascent life will not be effectively protected.

195

a) Pursuant to § 218c(1), any physician may provide information as to the availability of public and private assistance for pregnant women, mothers and children. However, social law and social reality are very difficult to comprehend, even for technically trained persons. A physician cannot be expected to provide reliable information about the potential rights to benefits and other possibilities that exist in individual cases, especially since an individual needs assessment is often required (such as for rent assistance or social assistance). Physicians are not qualified to provide such counselling, as they neither have the professional training nor do they generally have the time necessary to carry out individual consultations.

196

b) It is particularly questionable that the information regarding available social help can be provided by the same physician that would perform the abortion. This also devalues the medical consultation to be provided pursuant to § 218c(1) no. 2, which does fall within the scope of a physician’s duties. According to the considerations of the Special Committee for Criminal Law Reform, this is to be conceived as follows:

197

‘This is intended to be a consultation regarding the type of procedure and the associated potential medical consequences. However, the consultation should not be, – as expressed in the conscious choice to refer to a personal discussion with a physician – limited to these purely medical aspects. Rather, the consultation must extend, to the extent reasonable and possible, to the present and future situation of the pregnant woman insofar as it might be affected by the abortion and at the same time include, in accordance with the physician’s other duty, the protection of the unborn life. The physician must therefore also explain to the pregnant woman that the procedure will destroy a human life and the current stage of development of that life. Experience has demonstrated – as confirmed for example in the statements of von Pross ([...]) and Rolinkski ([...]) at the public hearing – that many women do not have a clear picture of the matter in this regard and that when they later learn of this information, it often results in serious doubts and reservations. Accordingly, the consultation must be designed to avoid such situations of conflict’. ([...])

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The physician who is consulted by the pregnant woman precisely for the purpose of performing an abortion cannot be expected to provide information in the manner envisaged here with the constitutionally-mandated goal of bringing about a continuation of the pregnancy. It must be assumed, based on the results of previous surveys and the opinions of representative medical professional bodies, that the majority of physicians refuse to carry out abortions that are not indicated, that it is primarily only those physicians who see abortion as a profitable business, or who are inclined to comply with any woman’s wish for an abortion because they see it merely as a manifestation of the woman's right to self-determination or as a means of emancipation, who will offer such consultations. In both cases, it is very unlikely that the physician will persuade the pregnant woman to continue the pregnancy.

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This is demonstrated by the experience in England. There, an indication (which is broadly described) must be confirmed by any two physicians. This has had the effect that, in practices that have specialised in this area, nearly every abortion that is requested is performed. The existence of commercial intermediaries who direct women to these private clinics is a particularly unedifying development, and also one that is difficult to avoid ([...]).

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c) The chances of success for the education and consultation are further prejudiced by the fact that an abortion can be performed directly thereafter. Under these circumstances, it cannot be expected that a pregnant woman and her family will seriously reflect on the arguments raised in the consultation. The alternative formulation for § 218c submitted by the Ministry of Justice to the Special Committee on Criminal Law Reform would have provided that the abortion could only be performed a minimum of three days after the education on available assistance (§ 218(1) no. 1). ([...]) Instead, according to the report of the Special Committee, ‘a mandatory period between the time of the consultation and the time of the procedure enforceable by criminal punishment (...) [was to be] avoided. In individual cases, this could lead to unreasonable difficulties depending on the place of residence and the personal situation of the pregnant woman, with the result that she will forego the consultation’ ([...]). For a woman who is seeking an abortion, the only important thing is to find a willing physician; as the physician is allowed to provide both the social and medical consultation and also allowed to perform the procedure, it cannot be expected that they will make a serious attempt to dissuade the pregnant woman from her decision.

III.

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In sum, the constitutional assessment of the time-limit rule enacted in the Fifth Act to Reform the Criminal Law is as follows:

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It is incompatible with the duty of the legislator to protect life that abortions which are performed on grounds that have no validity under the system of values of the Basic Law are not subject to legal disapproval and not made a punishable offence. Limiting criminal liability would be unobjectionable under constitutional law when done in conjunction with other measures that could have at a minimum an offsetting effect for the loss of protection through the repeal of criminal punishment. However, this is – as detailed above – manifestly not the case. The parliamentary debate on the reform of the law regarding abortion has deepened the understanding that the chief task of the state is to prevent the destruction of unborn life through, on the one hand, education on contraception and effective social support measures and, on the other, through effecting a general change in societal views. Despite this, neither the assistance of this kind that is presently offered and provided, nor the consultation provided for in the Fifth Act to Reform the Criminal Law is capable of replacing the protection of individual life that a criminal law provision still provides, in principle, in cases where there are no justifiable grounds for the termination of a pregnancy under the system of values of the Basic Law.

203

If the legislator views the hitherto existing undifferentiated threat of criminal punishment for abortion as a questionable means of protecting life, this does not release it from the obligation to achieve a better protection for life through a differentiated regulation in which those cases that are not justifiable under constitutional law are subject to criminal punishment, or at least to make an attempt to do so. A clear demarcation of these cases from those in which the continuation of the pregnancy is not reasonable for the woman will strengthen the didactic effect of the criminal provision. Anyone who recognises that the protection of life takes precedence over the woman’s right to freely live as she chooses cannot dispute the unjustness of the act in these cases, which are not covered by any special indication. If the state not only declares these cases to be subject to criminal punishment, but also pursues and punishes them in practice, then this will not be perceived as unjust or anti-social in the general legal understanding of society.

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The impassioned debate on the issue of abortion might give rise to a concern that in a certain segment of the population, the value of unborn life is no longer fully recognised. This, however, does not provide the legislator the right to resignation on the matter. Instead, it must undertake a sincere effort to enact legislation that provides for a differentiation of criminal punishment and thereby provides an effective protection of life that will also take hold in the public perception of the legal system.

IV.

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One asserted defence of the provisions at issue is that other democratic states in the Western World have recently ‘liberalised’ or ‘modernised’ their criminal provisions relating to abortion in similar or even farther-reaching ways, and that this is an indication that the revised provisions correspond to an overall evolution of views in this area and are not incompatible with fundamental socio-ethical or legal principles.

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This assessment has no influence on the decision to be made in this matter. Regardless of the fact that all of these foreign laws are highly contentious in their own countries, the legal standards applicable to the lawmakers in those countries differ from that which applies in the Federal Republic of Germany.

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The Basic Law is based on principles of state organisation that can only be explained by historical experience and the intellectual and moral confrontation with the prior system of National Socialism. In opposition to the all-pervading power of the totalitarian state, which claimed for itself limitless dominion over all areas of social life and for which, in its pursuit of state policy goals, the value of individual life meant nothing, the Basic Law established a ‘value-bound’ (wertgebundene) order that places the individual and their dignity at the heart of all of its provisions. At its basis lies the concept, as the Federal Constitutional Court pronounced early on (BVerfGE 2, 1 <12>), that human beings possess an inherent worth as individuals in the order of creation, which uncompromisingly demands unconditional respect for the life of every individual human being, even the apparently socially ‘worthless’, and therefore precludes the destruction of such life without legally justifiable grounds. This fundamental precept of the Constitution shapes the design and interpretation of the entire legal order. The legislator is also bound thereby; nor can this constitutional limitation be overcome by socio-political considerations of expediency or even state emergencies (BVerfGE 1, 14 <36>). Even a general change in the prevailing sentiment of the population – if that were ever to be determined – could not change it. The Federal Constitutional Court, which is charged by the Constitution to ensure that its fundamental principles are observed by all state organs and, when necessary, to give them effect, can only base its decision on those principles, the development of which the Court has made a decisive contribution to in its case-law. This is not meant as a derogatory judgment of other legal systems, ‘which have not had this experience with a system of injustice and which have not made such a decision for themselves due to a different historical development, different political circumstances and fundamental views of state and philosophy’ (BVerfGE 18,112 <117>).

E.

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In light of the foregoing, § 218a of the Criminal Code in the version of the Fifth Act to Reform the Criminal Law is incompatible with Art. 2(2) first sentence in conjunction with Art. 1(1) of the Basic Law, and void to the extent that it decriminalises the termination of a pregnancy if no reasons are present that have validity in the system of values of the Basic Law. In this respect, the provision must be declared void. It is the task of the legislator to make a clearer distinction between indicated and non-indicated terminations of pregnancy. In the interest of legal clarity, in accordance with § 35 of the Federal Constitutional Court Act, temporary rules as set forth in the operative part of this judgment apply until the new law comes into force.

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There are no grounds to find other provisions of the Fifth Act to Reform the Criminal Law void.