German Federal Constitutional Court abortion decision

The German Supreme Court addressed the issue of abortion two years after Roe v. Wade in a decision known as BVerfGE 39,1, holding that the unborn have a right to life guaranteed by the constitution, that abortion is "an act of killing", and that the fetus deserves legal protection throughout its development. The decision is a contrast to Roe because it cuts across the usual categories, and cannot be described as "liberal" or "conservative".

Notably, it said that the state has a duty to use "social, political, and welfare means" to foster developing human life, and that these are preferable to penal measures (though the latter are not ruled out). The decision came several years after decisions in the U.S. and Britain legalized abortion. It struck down a law that legalized some abortions in the first three months.

The decision considered the full range of arguments for abortion, both early (legalization had been a topic of debate in Germany since the turn of the century) and recent (used in other countries such as the United States and Britain that legalized abortion several years before). In particular, it specifically rejected the main points of reasoning in Roe v. Wade as well as its "term solution" as inconsistent with the constitutional guarantee of the right to life.

The part of the German constitution referred to in the decision, Article 2, Paragraph 2, says that "Everyone has the right to life", but does not specifically mention the unborn.

The decision was confirmed after the reunification of Germany, striking down East German laws which permitted abortions under most circumstances.

The decision does not make all abortions punishable, however. In the early 1990s, the German legislature (Bundestag) implemented a system where a woman having an abortion during the first three months of her pregnancy does not face legal sanctions if she undergoes mandatory counseling which has as one of its goals to present the case that the developing fetus is an independent human life, and obeys a 72 hour waiting period between counseling and the abortion. Later abortions are not punishable if medical reasons, such as possible harm to the woman from continued pregnancy, or a severely deformed fetus, indicate so. Despite some of the reasoning contained in the original German supreme court decision, the court has not found this system to conflict with the constitution. Some abortions are therefore illegal, but not punishable – de facto legal.

A significant number of abortions in fact occur in Germany, but the incidence per capita is about one-fifth that of the United States. Among the reasons for this lower rate may be the better social system in Germany, as well as the lower rate of teen pregnancies.