The abortion controversy and the German basic law : a socio-legal analysis

Abstract

How terminations of pregnancies should be addressed in law is a topic that has caused and still causes controversial debates worldwide. Should abortions be criminalized to protect the embryo/fetus? Or should those pregnant against their will be able to decide without legal restrictions? The fora, in which these questions were and are addressed are not only parliaments but also constitutional and supreme courts. While some jurisdictions grant considerable leeway to legislators, others heavily limit parliament’s discretion through constitutional implications. The German one, seems to belong to the latter group. The Federal Constitutional Court struck down a legislated time-limit regulation on constitutional grounds twice (1975/1993). Both times, the Federal Constitutional Court declared the decriminalization of abortions in the first trimester unconstitutional based on the constitutional duty of the legislator to protect the embryo/fetus. But why did the judges decide like this, even though the text of the Basic Law itself is substantially silent in this regard? And why is the constitutional precedent still so influential at a time in which international organizations and constitutional orders increasingly enhance reproductive rights? In the spirit of scholarship that aims to draw a realistic picture of constitutional interpretation processes, this thesis seeks to answer these questions by applying a socio-legal approach to German constitutionalism. This new perspective on German constitutional interpreters, such as constitutional judges, legislators, constitutional scholars, and explicitly feminist lawyers and the politics among them, not only allows contextualization of the constitutional abortion judgments but also highlights the underlying principles of the German constitutional abortion law at different moments. In addition to the analysis of documents and scholarly publications, around 25 semi-structured expert interviews with participants involved in constitutional abortion debates in the 1970s, 1990s, and today were conducted to collect information that the books are silent on.