On 5 December, the Bundestag was home to a heated debate about abortion, ahead of a potential vote, prompted by an inter-party bill spearheaded by Carmen Wegge, of the SPD, and Ulle Schauws, from Die Grünen.
The initiative, striving for a revision of the existing law, had the support of a large alliance of associations, including pro familia Bundesverband — a national chapter of the International Planned Parenthood Federation (IPPF) — and different feminist and migrant groups, as well as trade unions and some Protestant church associations. The 73 signatory associations published a press release with a joint appeal for Bundestag members to approve the draft law to regulate abortion, as it translates a “long-standing social and scientific debate into concrete political solutions”. It also stated that “the arguments have been exchanged, and the recommendations of independent experts have been taken into account. Now is the time to act.”
Supporting the legal proposal, Schauws accused the current law of being “deeply patriarchal” and carrying the idea that women don’t have “the right to decide for themselves about their pregnancy and thus about their life and their body”. Wegge similarly pointed out that the present criminal framing of the law “not only leads to stigmatization”, but also has “a dramatic impact on the care situation of women”.
On the opposite front, the Christian Democratic Union (CDU) and its sister party Christian Social Union (CSU) don’t see a need for action, and criticized the rush to reform without a broader public debate. Unsurprisingly, the far-right Alternative for Germany (AfD) has also spoken against a revision. The Bundnis Sahra Wagenknecht (BSW) coalition would be willing to support the draft law.
Illegal, but can be done
The sense of urgency to “act now” has to do with the country’s old fashioned legal framework when it comes to pregnancy termination. Abortion is considered a criminal offence in Germany under section 218 of the Strafgesetzbuch, the German Criminal Code — alongside to murder and manslaughter — with consequences that can go from a fine to imprisonment of up to three years, for both the person that undergoes abortion, as well as the doctors who perform it. It is worth noting that Section 218 has been inscribed in the country’s criminal code since 1871.
Women and pregnant people can only access abortion with no legal consequences under three exceptions: if the pregnancy is a result of rape, if the pregnancy poses a major health risk, or if it’s practiced in the first 12 weeks of pregnancy, under specific conditions. The latter case represents an incongruous situation of “it’s illegal, but can be done”, with add-ons of administrative, bureaucratic and economical obstacles.
In the first trimester, abortion can only go through if a mandatory counselling session takes place, as well as a three-day waiting period. Besides the questioning of the person’s ability to make decisions about their own body imposed by the compulsory counselling, the reflection period delays the procedure on an already short timeframe.
Even though, technically, women and pregnant people can undergo abortion until the 12th week, there’s a real issue with access: between finding a service provider, potentially travelling to access it, and finding a way to fund for it, it’s often too late.
Associations have been denouncing a lack of service providers in the country, with some cities having none. As a result, many people end up deciding to undergo the procedure in the neighboring Netherlands — those who can afford it, of course. Besides, there are fewer and fewer doctors able to perform abortions in Germany. This is due to retirement and medical education rarely including abortion in the curriculum, as it’s not compulsory in gynecological training — despite being one of the most common gynecological procedures. In addition, healthcare professionals are allowed to refuse to perform abortion based on conscientious objection, which sometimes results in entire hospitals not offering the service due to moral or religious reasons from one person in the leadership.
On the economical sphere, abortion being officially against the law, costs are not covered by health insurance. These might vary between 350 to 600 euros, and, if the person needs to stay at the hospital, they have to pay the daily rates themselves. There’s a possible application for cost coverage in cases of low or no income — but this is yet another administrative burden, which needs to have written confirmation by the doctor and the health insurance company.
All of the above causes material obstacles to real access to abortion, making it a class, racial and gendered issue that affects people who are already in vulnerable situations the most. Alongside people with low incomes, those who face greater barriers include people with refugee status, migrants, people in undocumented situations and those whose native language is not German (as denounced by Doctors for Choice).
By considering abortion a criminal matter instead of a healthcare one, the state sends a clear sign of stigmatization. “For the women affected, it makes a big difference whether what they are doing is right or wrong”, stated Frauke Brosius-Gersdorf, the deputy coordinator of an expert commission on the topic.
Slowly but surely, some steps in the right direction
Despite the conservative legal framework, some headway was made in recent years: the abolition of the ban on the “advertisement” of abortion services, and the setting of boundaries against harmful “pro-life”actions, such as harassment towards pregnant people at counselling centers.
Until 2022, under Section 219a of the German Criminal Code, doctors were forbidden to “advertise the termination of pregnancy”, facing a fine or imprisonment of up to two years if contravening the ban. This was the case with doctor Kristina Hänel, who was found guilty and fined for providing information about abortions in multiple languages on her website. Hänel took the matter to the Federal Constitutional Court, hoping to stir up the debate about Section 219a, in which “advertisement” was defined so loosely that doctors were prohibited from including any information on their websites about abortions, including methods to perform, risks of the procedure and costs — symbolizing a systematic targeting of medical staff offering the healthcare service. The case received widespread popular support and finally, two years ago, the Nazi-inherited law was scrapped, freeing doctors from criminal prosecution, and allowing pregnant people to access information on abortions and find a doctor more easily.
More recently, in early 2024 and as a result of the increasing number of “pro-life” protests and vigils in front of family planning centers and clinics all across the country, an amendment to the Pregnancy Conflict Act was passed. The alteration, proposed by the Federal Minister for Family Affairs, Lisa Paus (Die Grünen), aimed at preventing “sidewalk harassment”, as it is known, towards people who are seeking an abortion. Anti-abortion demonstrators are now prevented from approaching the centers and clinics within a 100-metre radius, as well as from putting anti-abortion flyers and posters within the same perimeter. The law considers as an administrative offence behaviours such as intentionally making it difficult for pregnant people to enter the facilities, imposing one’s opinions on them, harassment and intimidation, and making false factual statements about abortion. This amendment is therefore intended to protect both those who are seeking an abortion, as well as the staff of the counselling centers.
Will Section 218 be overthrown altogether?
The initiative for the law reform is in line with a report made by an expert commission of 18 people appointed by the government earlier this year to look at the regulation of abortion outside the criminal code. The commission’s non-binding recommendations included the legalisation of abortion in the early stages of pregnancy, within a timeframe that should be decided by lawmakers following the existing medical and ethical guidelines, which would potentially even allow it to extend beyond the current illegal-but-not-punishable 12 weeks.
The Union parliamentary group — the second largest in the Bundestag — composed of the opposition parties CDU and CSU, has positioned itself against the commission’s guidance, with the parliamentary group leader Thorsten Frei threatening a lawsuit against the government’s coalition if they were to implement the recommendations. With a federal election coming up early next year, in which CDU/CSU is currently leading the polls, it comes as no surprise that they would do their best to prevent the current government from making any advancements on this topic — which is probably why they’re deeming it “completely unnecessary for the coalition to deal with such an issue now”, in Frei’s words. Along the same lines, Andrea Lindholz (CSU) has accused the government of not aiming for social consensus, but for the implementation “of its ideological ideas and thus of a minority in this country”.
It seems, however, that the Union is wrong both about the majority’s opinion, and even about their own voters’ preferences. A population survey done in March 2024 shows that more than 80% of the German population think it is wrong that an abortion is illegal, and that around 77% of Union voters support a regulation outside the penal code.
Last week, several thousand people took to the streets in Berlin and Karlsruhe in favor of a full legalisation, and for the scrapping of Section 218 all together. The pro-choice movement would like to go beyond the proposal on the table, though, by also abolishing the mandatory counselling. This is one of the demands of the petition launched by the Bündnisses für sexuelle Selbstbestimmung (Alliance for Sexual Self-Determination) — a broad alliance composed of individuals, associations, feminist and political groups, unions and political parties such as SPD and Die Linke.
With a likely shift to the right after February 2025, the clock is ticking for the Ampel coalition. The law reform needs at least 367 votes to be passed in the Bundestag. It is still uncertain, however, if and when the vote will take place. First it will have to make the rounds in the Legal Affairs Committee. It’s yet to be seen if the coalition will be able to give the green light to self-determination, or if they’ll leave the motto “my body, my choice” gathering dust until the next election manifesto.
