Opinion of the Federal Constitutional Court on abortion

Abstract

The German Constitutional Court issued a ruling on May 28, 1993 (2 BvF 2/90, 2 BvF 4 and 5/92) to the effect that Paragraphs 218, Sections 1 and 219 of the pregnancy and family protection law (SFHG) of July 27, 1992, were unconstitutional. The ruling was brought at the request of the Bavarian provincial government and 249 deputies of the CDU-CSU-Faction of the German Parliament. The SFHG was intended to encompass the whole of Germany and invalidate the legal differences in the reunited parts of Germany. In the ruling there were important stipulations about the protection of human life. The newly drafted Paragraph 218, Section 1 was declared null and void, in particular because it did not consider that abortion undertaken within 12 weeks after counseling was against the law, nor did the new rules of Paragraph 219 about the content and organization of the duty to counsel. The basis of the ruling was the verdict of the Court on February 25, 1975 (BVerfGE 39, 1), which declared that it is the duty of the state to protect the unborn human life from the beginning of the pregnancy even against its mother. In order to guarantee the minimum requirements of protection of unborn human life by the state, the Senate replaced the nullified sections of the SFHG by a provisional regulation to be effective as of June 16, 1993, when Article 16 of the SFHG also became effective, which cancelled the term regulation valid in the new federal provinces until then. The provisional regulation stated that abortion would not be punished when performed by a doctor within 12 weeks of gestation, the pregnant woman requested it, and proved to the doctor by an affidavit that at least 3 days before the procedure she had been counseled by an authorized counseling facility. Criminal, medical, and embryopathic cases would be covered by insurance, and those without insurance could apply for social assistance to pay the costs.