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Why Germany is planning to overhaul abortion information laws

After years of controversy and criticism from gynaecologists, Germany is planning to scrap a Nazi-era law that limits information on abortion, while access to the procedure in the country remains beset by obstacles.

A pro-choice counter protester at the
A pro-choice counter protester at the "March for Life" demo against abortion in Berlin in September 2020. Photo: picture alliance/dpa | Jörg Carstensen

The Social Democrats, Greens and the Free Democrats, ruling together as a government since December, promised in their coalition agreement to scratch one of the most controversial sections of the penal code from the statute books.

Paragraph 219a, adopted in 1933 shortly after Adolf Hitler had taken power, prohibits the “promotion” of abortion, a crime punishable by “up to two years of imprisonment or a fine”.

It is on this basis that courts have in recent years handed out penalties to medical professionals offering information on pregnancy terminations on the internet.

In some cases, the sites offered a simple statement that the gynaecologist carries out abortions, with no further details.

But an end came a step closer after the Justice Minister Marco Buschmann put forward draft legislation in January to remove the paragraph, though it has yet to be voted on in the Bundestag.

Buschmann said: “Women who are considering terminating their pregnancy are in a painful life situation. They want to inform themselves of the facts, and are seeking counselling on methods, risks and potential complications. We would like to facilitate this search for counselling independently of doctors’ appointments.

“Doctors should be able to provide information on pregnancy terminations to the public without incurring potential liability under criminal law.

Counter-protesters hold posters opposing the "March for Life" demo in Berlin in September 2021.

Counter-protesters hold posters opposing the “March for Life” demo in Berlin in September 2021. Photo: picture alliance/dpa | Paul Zinken

“We see women who do not react lightly to the burdensome question of pregnancy termination – rather, they deal responsibly with the situation.

“Those who count on people responding responsibly to difficult personal life questions must repeal section 219a of the Criminal Code. We are creating spaces for self-responsible freedom. This is the task of legal policy.”

Buschmann said a commission will also be tasked with reviewing the regulations for pregnancy termination outside the scope of the criminal code. 

Strictly limited

Among the doctors prosecuted in recent years is Kristina Hänel, a general practitioner from Giessen in western Germany, who became the face of the campaign to ditch the law after being fined €6,000 ($6,558).

Her legal misadventures created a sensation in the media, reminding Germans that abortion remains severely restricted in law.

The many pitfalls for practitioners dissuade doctors from offering the procedure in a country that was at the forefront of the women’s rights movement in the 1970s.

In June 2019, two gynaecologists in Berlin, Bettina Gaber and Verena Weyer, were each also handed two-thousand-euro fines for the same offence.

Hänel told The Local that the law reform was a “step forward”. She said there was no change in the status of her case yet – it is to be discussed in the constitutional court unless a reprieve is announced following any law change. 

German gynaecologist Kristina Hänel attends a regional court hearing regarding her case in December 2019.

German gynaecologist Kristina Hänel attends a regional court hearing regarding her case in December 2019. Photo: picture alliance/dpa | Boris Roessler

But she said the most important thing is that doctors will be able to publish information online so that women can make an informed decision. 

In Germany, a woman wishing to have an abortion in the first 12 weeks of her pregnancy must have an obligatory consultation at an approved centre.

The aim of this dialogue is to “encourage the woman to continue her pregnancy”, even if in the end the choice was up to her. After the consultation patients must wait through a “reflection period” of three days.

Pro-choice campaigners in Germany generally also call for paragraph 218 of the criminal code – which effectively makes abortion illegal – to be abolished.

There are exceptions, such as if the woman has the mandatory counselling, if the pregnancy creates health risks, or if the pregnancy is the result of rape.

Meanwhile, except in exceptional circumstances, such as a risk to the life of the mother or in the event of rape, abortions are not paid for by health insurance, despite sometimes costing hundreds of euros.

Hänel added: “We hope that we can change more in future. But at this moment our battle is concentrated on the improvement of the women’s situation.”

Anti-abortion militants, who organise themselves online, are behind most of the complaints made against medical professionals, while one activist was recently convicted for comparing abortion to the Holocaust.

Under pressure from campaigners, many medics have removed all relevant information from their websites and have declined to be included in family planning lists shared with women looking to end their pregnancies.

The outcry that came in response to the prosecutions led Angela Merkel’s government to relax legislation slightly, allowing gynaecologists and hospitals to indicate online that they offered abortions.

EXPLAINED: Germany’s plans to soften controversial abortion laws

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Specifying what methods were used was, however, still prohibited, a compromise solution that did not satisfy practitioners.

Opposition from within Merkel’s own Christian Democrats had prevented the paragraph from being struck from the penal code completely.

Removing the paragraph would mean no longer being able to tell “whether the advertisement came from a cosmetic clinic or an abortion clinic”, said Merkel’s party colleague Helge Braun, one of her closest aides and who is himself a doctor.

READ ALSO: What you need to know about the abortion law battle that divides Germany

Around 100,000 abortions are carried out in Germany every year, although the number has gone down in recent years.

The subject is still a taboo in Germany, according to a number of gynaecologists, and can be like an obstacle course for patients, particularly in traditionally Catholic Bavaria.

In some parts of the vast southern state, no hospitals offer the procedure, with many people opting to cross the border to Austria instead.

With reporting by Yannick PASQUET

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READER QUESTIONS

Reader question: Is abortion illegal in Germany?

Reproductive rights are in the spotlight this week as the US debates possible landmark changes to abortion law. Here's what you need to know about abortion in Germany.

Reader question: Is abortion illegal in Germany?

A leaked document earlier this week claimed that the US Supreme Court is in favour of overturning a landmark 1973 ruling, called Roe v Wade, that made abortion legal in the USA.

The news has put a further spotlight on reproductive rights around the world. Readers of The Local have contacted us to find out about the laws on abortion in Germany. We spoke to campaigners for women’s reproductive rights to help explain what you need to know.

Is abortion illegal in Germany?

It may surprise many people to know that abortion remains technically illegal in Germany, but there are circumstances in which people can end a pregnancy without facing any legal consequences. 

The exceptions include: the abortion being performed within the first 12 weeks of pregnancy, and following mandatory counselling carried out at least three days before the procedure to terminate the pregnancy.

If there is a medical reason for an abortion, then it is not unlawful. This applies, for instance, if the pregnancy poses a danger to the life or physical and mental health of the woman. An abortion can also be carried out if tests identify that the foetus is disabled or seriously ill. Late abortions (after 12 weeks) are allowed if these special factors apply. 

Abortions are also legally possible if they are the result of a criminal act – for example if the pregnancy is the result of rape. 

The termination of a pregnancy is known as Abtreibung or Schwangerschaftsabbruch in German. Around 94,600 abortions were reported in Germany in 2021, according to official figures. 

The rate of abortions per 1,000 women in Germany stands at 6.8 – one of the lowest in Europe alongside Switzerland. The rate of abortions stands at 19 per 1,000 women in Sweden, 17 in the UK, 16 in France and 16 in the US.

People who choose to get an abortion in Germany generally have to cover the costs of the procedure themselves. 

According to the German Centre for Foreign Feminist Policy, which published information by Medical Students for Choice Berlin, abortion in Germany can cost between €200 and €650 depending on the methods involved. People can apply for financial help from their health insurance.

READ ALSO: Is abortion legal in Switzerland?

A pro-choice counter protester at the "March for Life" demo against abortion in Berlin in September 2020.

A pro-choice counter protester at the “March for Life” demo against abortion in Berlin in September 2020. Photo: picture alliance/dpa | Jörg Carstensen

Tell me more about abortion laws in Germany…

There has been a lot of discussion about abortion in Germany in recent years. Germany’s traffic light coalition – made up of the Social Democrats, Free Democrats and Greens – recently announced plans to scrap paragraph 219a – a controversial clause on advertising abortion that has remained largely unchanged since it was brought in by the Nazis in the 1930s.

It has meant that doctors in Germany have been unable to advertise that they carry out abortions, and detail what methods they use – and has even resulted in prosecutions, such as the high profile case of Kristina Hänel, a doctor from Giessen in western Germany.

Getting rid of this paragraph should pave the way for more accessible information on abortion in Germany.

READ ALSO: Do Germany’s planned changes on abortion go far enough?

But abortion in Germany is still regulated by paragraph 218 of the criminal code, which dates back to 1871. Although the law has been amended to allow for exceptions, pro-choice campaigners in Germany want to see abortion fully legalised. 

Dr Alicia Baier, chairwoman of campaign group Doctors for Choice, said the German coalition government’s plans to get rid of paragraph 219a were a step forward.

But she said much more action was needed – including removing abortion from the criminal code. 

“I think German abortion laws are behind the times,” Baier told The Local. “There are many European countries which regulate abortion outside the criminal law. But in Germany we still criminalise abortion, we still have the obligatory waiting period, and obligatory counselling.”

Baier said abortion didn’t belong in criminal law. “That’s not the place for abortion, it should be regulated in some other law. Like in France – they regulate it in the public health law.”

Although the coalition government has said it wants to set up a working group to look at options for regulating abortion “outside of the framework of the criminal code”, there doesn’t seem much political appetite for big change.

Earlier this year, Katrin Helling-Plahr, FDP parliamentary group spokesperson for legal policy, told The Local: “We Free Democrats are of the opinion that Paragraph 218, as the result of a long societal discussion, represents a successful compromise with regards to protecting the life of the foetus and the right to self-determination of the pregnant person.”

Campaigners at the pro-life 'March for Life' in Berlin in September 2021.

Campaigners at the pro-life ‘March for Life’ in Berlin in September 2021. Photo: picture alliance/dpa | Paul Zinken

Is it difficult for women in Germany to get an abortion in practical terms?

According to campaigners, it can be hard for people to find information on terminating pregnancy and doctors to carry it out depending on where they live.

“I think it really depends on the women themselves and where they are,” campaigner Annika Kreitlow, a research assistant with the Centre for Foreign Feminist Policy, told The Local. 

“I think in Berlin it’s okay – there are a lot of doctors in Berlin and a lot of progressive people move to Berlin. But if you live in the south of Germany, like in Bavaria for example, there are cities which don’t have any doctors who provide abortions at all.

“In the northern islands of Germany, people there also have to fly to the mainland to get an abortion – sometimes they have to travel 200 or 300km to get an abortion.”

Kreitlow also said people in Germany face additional barriers because of the mandatory counselling and three-day wait. 

“You have to be really consistent on finding a doctor who will do that before the 12th week. It depends on the region and also how much knowledge the person has on the situation,” she said. “If you’ve never come into contact with this and don’t know anyone who’s had an abortion, there’s a lot of fake information out there and fake websites.”

She said it’s more difficult for non-Germans.

“If you’re not a native German speaker and you come from somewhere else, it’s also very different to find the right information and distinguish what is real information and what is fake, who to trust and who to talk to,” Kreitlow said. “It’s a very difficult situation but a lot of circumstances make it even more difficult in Germany.”

How do the laws affect doctors?

Dr Baier said there was still a “big stigma” surrounding abortions in Germany – including in the medical profession. Although it is one of the most common gynaecological procedures, it is often hardly discussed at medical schools in Germany.

“In many universities – during six years of study – it’s not mentioned at all, or it’s mentioned in the context of medical law or medical ethics,” said Baier.

“It’s still very taboo in medicine. We wish it was acknowledged as part of medicine because it’s a medical procedure. In Germany, only doctors are allowed to perform them. If we don’t do it, people are left alone and that could cause a lot of health risks.”

Baier said the barriers for women in Germany looking to get an abortion, or for information on it, need to be urgently worked on.

“In some regions of Germany it’s catastrophic and people are treated very badly,” she said. “We have a modern health system but it doesn’t correspond to that at all in this area.”

 

Is there a large pro-life movement in Germany?

There’s a sizeable number of campaigners who are against abortion in Germany.

Pro-life events such as Marsch für das Leben (March for Life) take place every year in Berlin. In 2021 around 4,500 people attended the march, demonstrating against abortion and euthanasia laws. Counter-demonstrators from the pro-choice movement also march on the days of these events. 

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