Abortion in Germany - 'where providing information is a crime'

Germany is seen as a pretty liberal country. Alcohol is sold in supermarkets and is practically cheaper than bottled water, kids can buy a large enough quantity of fireworks to blow up a small house, and gay marriage is legal (okay, only since last year, but Christopher Street Day in Berlin attracts such a crowd it’s almost a public holiday). But there are some things you can’t do – particularly if you’re a woman and say, pregnant, or a doctor who carries out pregnancy terminations.

According to section 218 of Germany’s criminal code, abortion is a crime. It’s in the part pertaining to “offences against life”, alongside murder and negligent manslaughter, although a sub-section spells out that it is decriminalized in the first 12 weeks of pregnancy, that is, if the woman has a certificate from an authorized counselling service and waits three days before having the procedure carried out.

In case you were thinking that the counselling was intended to provide support to the pregnant woman, you were wrong. The law states that the “the counselling serves to protect unborn life. It should be guided by efforts to encourage the woman to continue the pregnancy and to open her to the prospects of a life with the child”. Well, that sounds unbiased, doesn’t it? Feminists and other people who believe that women are capable of deciding whether they are prepared to push something the size of small watermelon out of their vagina without the interference of the state have been arguing for this law to be abolished since the 1970s.

Yet, as outrageous as it might be, it is not this part of the law that has come under scrutiny recently, but a related sub-section. In November 2017, a doctor was charged and fined over €6,000 for having a PDF with information about abortion on her website. She was charged under section 219a of the German criminal code, which refers to the aforementioned section on pregnancy termination, and specifies that doctors and other healthcare providers cannot provide certain kinds of information about their services.

In this particular case, Dr Kristina Hänel refused to take the information down from her website and settle before court, which would have seen her walk away with a modest fine and a slap on the wrist. Generally, when faced with these kinds of charges, doctors plead ignorance or say they won’t do it again, but this time around Hänel decided that her patients have a right to information. Information, for example, about what to expect when visiting the clinic to have a pregnancy terminated, from what the procedure involves to what they should bring with them (clean underwear, cosy slippers, etc). The judge, however, agreed with prosecutors who claimed the information constituted an advertisement. The judge explained that the law was there to ensure that abortion would not become “normalized”. Just as an aside – around 70,000 women die annually due to unsafe abortions in countries where access to abortion is restricted. Is that the kind of “normal” we are working towards?   

Kristina Hänel. Photo: DPA

Now in case you’re wondering how the under-resourced German law enforcement authorities manage to find time to trawl the net looking for potential suspects, aka doctors, the short answer is – they don’t. The vast majority of cases result from charges being pressed by radical “pro-lifers”, Christian fundamentalists with too much time (and money) on their hands. Their most assiduous supporter is Klaus Günter Annen, who runs a website with the charming title “Babycaust.de” featuring the names of most abortion service providers in Germany. Funnily enough, it’s not a bad place to get information if you are looking for a comprehensive record of other pro-choice allies.

For the past two decades, most of the charges have been pressed by Annen himself, but more recently, the number of cases has increased dramatically due to the fact the “pro-lifers” (actually, let’s call them anti-choicers) are growing bolder and have reportedly created their own legal association for this very purpose. There used to be around two to 14 cases a year, however, police statistics confirm that in 2015 there were 27, and in 2016 35 cases. While in the past most of this went largely unnoticed, the high-profile case involving Kristina Hänel has captured the attention of the media and the wider public; recent media reports confirm there are a number of other doctors facing similar charges at present.

The public support for Kristina Hänel has been overwhelming – over 155,000 people signed an online petition demanding that information about abortion should be freely available and that section 219a should be abolished. Hänel has since promised to challenge the verdict and take the legal battle to the next level, which could result in a hearing in the constitutional court later this year.

In the wake of the verdict, Germany’s more progressive political parties decided to join forces and request a parliamentary vote to abolish section 219a (the law pertaining to advertising abortion services). They don’t have much time to do so, because, once the new government is formed, the Social Democrats (SPD) will officially lose their motivation to ruffle the feathers of their conservative coalition partners.

The first hearing of the submission will take place on February 22nd and in theory there could be a slim majority in favour of abolishing the law. This would be a slap in the face for the right-wing AfD, strongly represented in the new parliament, who have advocated for stricter regulations around abortion and measures to promote a higher birth rate for (German) women. Their deputy chair, Beatrix von Storch, can be seen at the front of the anti-choice “March for Life” demonstrations in Berlin every year in September. Before taking up her mandate in the EU parliament, she successfully campaigned against EU-wide reforms around sexual and reproductive health and sex education in schools.

Anyway, the timing of this sudden burst of opposition to section 219a seems surprising, particularly given that politicians have had a while to do something about the regulation of abortion. Section 219a was introduced in 1933 by – you might have guessed already – the Nazi party, as part of sweeping reforms to criminalize Jewish doctors, communists and homosexuals. Until last year, when the media started reporting on the Hänel case and a lot of people came to realize how restrictive Germany’s abortion laws actually are, a liberalization seemed unlikely. If the vote goes ahead later this month and a small miracle sees a majority in favour of abolishing section 219a, I would pay good money to have a live camera on the floor of parliament filming Beatrix von Storch’s face.

Unfortunately, it’s looking like the Free Democrats (FDP) are getting ready to back down on their initial statements in support of scraping the law entirely and will instead propose a mere tweak of the wording, which would satisfy their demand for free information without giving women too much autonomy over their own bodies.

However, if the law doesn’t get overturned this time around, it’s safe to assume that it won’t be easy to put a lid back on the debate around reproductive rights in Germany and in other European countries. With the upcoming referendum on repealing the 8th amendment in Ireland, and the worsening situation for women in neighbouring country Poland, there are plenty of reasons to join the pro-choice bloc at the Frauen*kampftag demonstration on International Women’s Day (March 8, 2018) and the day of action organized by the Bündnis für sexuelle Selbstbestimmung in September in protest against the annual “March for Life” in Berlin.

By the way, if there are any lawyers reading this, I’d like to know if it’s possible to press charges against Klaus Günter Annen for advertising abortion services. I expect you’ll find my contact details on his website.

Kate Cahoon volunteers for the Bündnis für sexuelle Selbstbestimmung, a pro-choice advocacy group.