348 Basic Bjghts and Liberties pregnancy. East Germany, by contrast, permitted abottion on demand withirj i ■■■ first trimester of pregnancy. Stalemated, the two German states agreed to rt in their respective abortion policies until an all-German legislature could work ci ■ satisfactory compromise, the Unity Treaty having laid down a December 31 i.... deadJine for the enactment of an all-German law acceptable to both sides.68 The first all-German parliament, eleaed on December 2, 1990, struggle- 1 find a middle ground between the conflicting policies of East and West. By \| ■ 1992, a severeíy fractured Bundestag had before it several proposals ranging frc ■■ ■ pian to increase the severky of West Germany^ existing polic)'' all the way ovt ■ ;■ one based on unrestricted freedom of choice. After months of debatě and negi ■■ ■ tion, the quarrelíng parties broke the logjam and reached a compromise, passing1 ■ ík Pregnancy and Family Assistance Act by a broad majority (357 to 283 votes).69 The act incorporated a time-phase solution with obligatory counseling. >,'< following passage captures the essential features of a detailed and complic ■■.-statute: The new "counseling model" retained the concept that abortion destroys liK and should only be allowed if the continuation of pregnancy would result ii. an unreasonable burden for the woman. But at the samé tkne it reflectcd thv belíef that the State's duty to protéct developing life could be better served, ii 1 generál, by improving the sociál environment for women and familier. w it' children, and in the individual čase of unwanted pregnancy, by comprclier sive information and counseling, than by threatening punishment and estab lishing cumbersome procedures for obtaining a permission to abort ("sup port instead of punishmenť"). Consequently, the new legislation containcd voluminous package of generál sociál measures on education, bírth controi and State assistance in matters of family planning and pregnancy. Wirh re spéct to the individual woman faced with an unwanted pregnancy, the At ■ focused on providíng not only State assistance in čase of financial need but o strengthening the woman's rights and opportunities in education, workplacc career, and housing. Speciál emphasis was put on "day care."70 The new statute departed from the Constitutional Courťs earlier rulíng in ■ ■'!., crucial respect. It decriminaíized abortion in the first trimester of pregnanc; » words that would come back to haunt the Bundestag, the new change in the cr." nal code declared that the ínterruption of pregnancy in some circumstances was •"*■ '■ illegal" (nicht rechtsmdrig)71 Specifically, no crkninal penalty would attach t • -i" abortion if performed by a licensed physician after compulsory counseling a ■ three-day waiting period. If, after such counseling—which would háve to be »-■ tífied in writing and before the twelfth week of pregnancy—the woman stil 1 dec • v>' that an abortion was in her best interest, a licensed physician could then l^H; perform the abortion. HUMAN DIGNITY ANPPB^SONHOOD 349 7.n Abortion II Čase (1993) 88 BVerfGE 203 „crmany-p^oned the Consu ons rf ^ , ;nt. Bavaria's State «—™^C Zra" petition. In a preUminary heat-.. ltute were unconstttuttonal, filed ^separ p brfore ^ law ould háve ««"J°2*hagrin of others, unarnmously issued *n .„nstitutional scholars and tne cn * d Gemanpolicypendmg MT°rof — wSu.taneousiy adjusr^g *e character of -ssential core of Abortion ^^caňon Germany. imsprotectiontomeetthe^ofp-^ The fuU opinion and two dissentmg j headnotes and ** tepotts. Tne extracts below —^ ^ fey ^ rfected passages from the courťs "F^^^ Translated by Sus-court itself, summarize the main """& — ,-^rmtiond Um cceptance by the mother but exists prior *, thrsporntm um ■ ^ ^ ^ ^ 2. The duty to protéct the unborn is a duty owed to mman life in generál. . mother. Such protec- , The unborn is dne ^ P"^"/™ " £ %. a law prohibiting tion can be afforded to the unborn only rf the legislatur p ^ ^ abortion and places a basic legd obligation on women ^! Thebar on abortion and theba.icobhgation to carryapregnancy^o two inseparable elements of this constitntionally "S""^""^ fee todamen. taUy considered a wrong and, ťhus, unlawful. The determm 350 Basic Rights and Liberties of the unborn must not be delegated to the discretíon of a third party who i bound by law, not even where die third party is the mother herself and no n how limited the time period may be in which such a right may be exercised. 5. The scope of the duty to protéct tiie unborn is to be determined by weif its importance and need for protection against the conflicting interests of objects deserving of legal protection. Those interests which conflict with th born's right to life incíude—starting with a woman's right to háve her hi dignity protected and respected (Article 2 [1]) — above all, a womairs right 1 and physical integrity (Article 2 [2]) and her right of personality (Article 2 The constitutional rights of a woman, however, do not go so far as to allow 1 claim under Article 4 (1) a fundamentally protected legal right to kill an tu [child] bymeansof abortion. 6. The statě must fulfill its duty of protection by adopting adequate me; setting legal and factual standards whose objective—ín consideration of confl legal interests —is to provide for appropriate and effective protection (mini protection). For this purpose, it is necessary to create a regulátory scheme i combines elements of preventivě as well as repressive protection. 7. The fundamental rights of a woman do not mandáte the generál suspe of a duty to carry out a pregnancy, even within a limited time frame. Howe woman's constitutional rights permit—and in certain cases might require--t nition of exceptional drcumstances under which such a duty shall not be im] on her. It is up to the legislature to determine the specífic criteria of these ř exceptions according to a standard of reasonableness. Those burdens shall stitute exceptions which require such a degree of sacrifice of individual need woman that it would be unreasonable to expect this from her. 8. Under minimum protection the statě is precluded from freely dispe with criminal punishment and its protective effect on human life. 9. The state's duty to protéct the unborn also includes protecfing the tu from dangers emanating from the ínfluence of the woman's immediate or g> sociál milieu or both her and her famil/s present and foreseeable living cii stances and, as such, ínterferíng with the woman's willingness to carry oi pregnancy. oubHrt ^ ^^ ^ °f ^ ******** ^es maintaining and raising th pubhCs consaousness of the unbonrs legal right of protection. theníi í egfuatoeaCtSC°nStÍmtionaUywhenitadoptsaregulatoryschemefo woT «fA?^bomwWchuses-^eHngasamea11sofinducmgpregnan rzT?^™g*eea^^ to term. The leglslature also act, within constitutional bounds when it dispense, with crHTunal prosecution for indicated abortions as well as the determination of such indications by third parties. 12. A counseHng-based regulation must comply with underlying constitutional Human Dignity and Personhood 351 tions which impose affirmative duties on women for the benefit of the unborn. ■ate holds full responsibility for implementing the counseling proceduře. a The state's duty to protéct the unborn requires that the physician cooperate íly in the interest of the woman but also to the benefit of the unborn. 4 It is unconstitutional to deíine by law the existence of a child as a source of re or harm (Article 1 [ 1 ]). For this reason, it is prohibited to acknowledge a ;nance obligation toward a child as a type of damage or harm. 5. Abortions performed in the absence of a determined indication as pre-d by the counseling regulation may not be deemed justified {not unlawful). ding to inalienable fundamental principles of law, an exception can háve the o(a legal justification only if it is incumbent on the statě alone to establish the a necessary to také the act in question out of the generál rule. 6. It is unconstitutional to create an entitlement to statutory health insurance 1 ts for the performance of an abortion whose lawfulness has not been estab- By contrast, it is not unconstitutional to grant sociál welfare benefits for 1 ons not incurring criminal liability under the counseling regulation where a n lacks financial means. Continued payment of salaries or wages in the čase of irtion is also constitutional. 7. The administrativě power oíthcLander remains unqualified where a federal 1 erely prescribes an obligation to be met by the Liinder and not the specific 1 tions which can be implemented and enforced by the govemmental admin-■ x authorities of the Liinder. Lent of the Second Senáte.... . The Basic Law requires the statě to protéct human life. Unborn life is human d thus entided to the state's protection. The Constitution not only supports statě intervention on behalf of unborn life but also requires that the statě t unborn life from the illegal intervention of others. This duty toprotect [unie] isfoundin Article 1 (1) ofthe Basic Law, which expressly obliges the statě lect and protéct human life___ \) Unborn human life possesses human dignity; [dignity] is not merely an ite of a fully developed personality or a human being after birth.... y) The duty to protéct human life extends to the life of each individual being, human life in generál. Any ordered life in common within a statě requires that ity be fulfiUed. The Basic Law imposes this duty on all levels of statě authority te 1 [ 1 ]); i.e., on the statě in all of its functions, particularly in the exercise of slative authority. The duty to protéct extends also to the adoption of measutes ed to ease the burden of pregnancy as well as to [various] rules of conduct. The statě imposes rules of conduct to protéct unborn life by means of legal tions, prohibitions, or duties to act or refrain from acting. These rules must >ply to the protection of the unborn child from its mother, regardless of the 352 Basic Rights and Liberties stage of chis rclationship of duality in unity [Zweibeit in Einheiť]. [Eut] the u child can only be protected from its mother if the legislature prohibits an ab and imposes a legal duty on the mother to carry the child to term. The fundai prohibition on abortion and the fundamental duty to carry the child to tei inseparable eleraents of the constitutionally required protection. Moreover, [the statě must also protéct unborn life] against invasion h parties, not the least of whom are people within the pregnant womarfs fan sociál circle. These indíviduals may threaten the unborn child directly or ind by denying the pregnant woman the assistance they owe her, creating difficuli her because of the pregnancy, or pressuring her to terminate the pregnancy, (a) These [legislatively created] rules of conduct cannot be simply voli they must be imposed by law. The right to life is embodied in the norms of th Law. [This right is speciál] and thus requires speciál binding rules for its ef realization. [Criminal] penalties, however, are not the only possible sanctic though they may sway indíviduals to respect and obey the requirements of k Legal rules of conduct must provide for two kinds of protection. On t hand, where a proteaed legal value is harmed or threatened, they must inc regulátory scheme that includes individualized preventivě measures or punisl On the other hand, such rules must [be designed to] strengthen and support lar values and concepts of right and wrong; they must promote the public sciousness [of the unborn chilďs] legal right to protection [citing the£ř/řJ«i (b) But since the Basic Law does not elevate the protection of [unboi above all other legal values, the right [of the unborn] to life is not absolute. I elevated above all other legal values without exception; this is clear from Ai (2) . . . Rather, the scope of the state's duty to protéct the unborn is to be mined by weighing its importance and need for protection against other com legal values. The legal values aťfected by the right to life of the unborn incli woman's right to protection and respect for her own dignity (Article 1 [1 rights to life and physical integrity, and the right to personál development (A [1]). The legislature has the responsibility of determining the nature and se the required protection. To the extent that the legislature is constitutionally to act in this area, it must provide the minimum protection necessary to saf the relevant constitutional value. The required protection may not fall bek niinimum standard [Untermfts$verbot~\___ (c) So as not to run afoulof this standard of minimum protection, the j tion aiforded [the unborn] must satisfy the minimum requirements of th order. (aa) This principle requires that abortion be declared iilegal [as a generř duríng all stagesof pregnancy [citing Abortion I]. If the law does not declar Human Dignity and Personhood 353 ■j be iilegal, the unborn chilďs right to life would be trumped by the legally -rained decision of the mother or other third party, and the legal protection of would no longer be guaranteed. The dignity claims of the woman, and her ty to make a responsible decision, cannot justify such a devaluation of human he right to life itself must define the scope and limits of its permissible in-menf this cannot be left to the [complete] diseretion of [third] parties. Aíthough the right of the unborn to life [is the superior value], it does ;tcnd to the point of elirninating all of the woman's legal rights [to self-nination]. [Her rights] can produce a situation in which it is permissible in :ional cases —and is even required in some—not to impose a legal duty to hc cliild to term. bb) The legislature is responsible for defining these exceptional circum-s. So as not to fall below the minimal requirement for protecting a basic right, .•ishture must recognize that the conflicting legal values cannot be quan-■:lv balanced. From the perspective of unborn life, the legislature's choice must c for life itself and may not embrace the mere balancing of losses and gains. Because bortion always results in the death of the unborn child, a [balancing act of the kind jggestctl] isimpossible [citingAbortion I]----- This does not mean that the only constitutionally exceptional čase where the ■'oman need not carry her fetus to term is when her life or health is endangered. >ther exceptions are imaginable. This court has established the standard of an nreasonable burden as the basis for identifying such exceptions [citing Abortion ] . ■ ■ The unreasonable burden standard is justified because in the light of the nituie rclationship between mother and child, prohibiting abortion does not end rith the imposition of a duty to refrain from violating [altogether] the rights of Eiodier. There are further duties that affect the woman's entire existence: the duty to irry and bear the child and to care for it many years after its birth. Given these regiiaiK-y-related responsibihties and the psychic conflict they may evoke, it is ossiblc that many women in the early stages of pregnancy may experience serious, ren lifc-threatening distress; in these circumstances, such urgent interests worthy f legal protection arise that the legal order cannot require the woman to value an nborn beingfs right to life above all else, regardless of broader moral or religious :mccrns. An unreasonable burden cannot arise from the circumstances of a normál preg-ancy. Rather, [an unreasonable burden] would háve to involve such a measure of icridccofexistential values as could not beexpeaedofany woman___ In addition to deťined medical, criminological, and embryopathic indications iat would justify an abortion, there may be other situations where an abortion (Hild atso be indicated [as justified]. One such scenario would include a condition such sociál or psychological distress that a clear čase of an unreasonable burden ■'ould lx- demonstrated. 354 Basic Rights and Liberties (cc) Although the unreasonable burden standard limits a woman's di carry a child to term, it does not relieve the statě from its duty to protéct m human life. It directs the statě to support the woman through counselin assistance and to try to persuade her to carry the child to term. This is the pres tion behind Section 218a (3) of the Críminal Code. (dd) ... [But] due to its extréme interventíonist character, criminal lm not be the primary means of legal protection. Its application is subject to t quirements of proportionality (citing several cases), The críminal law is ušed ultinrn mtio of this protection ... Where the legislature has enacted constituti adequate, noncriminal measures to protéct the unborn, the woman need r punished for having an unjustined abortion in a limited number of [define stances so long as tiie legal order clearly expresses the view that abortion generál rule] is to be prohibited. So long as the law makes the generál prohi [of abortion] clear, this may be constitutionally sufficient [to deter abortío this limited set of circumstances.... 3. The state's duty to protéct unborn life is not satisfied merely by defen< against invasion by others. The statě must also také measures to confront dí threatening the present and future real-life relations of the woman and her f These relations may influence her decision to carry the child to term. This d protéct [unborn life] implicates the state's duty to protéct [marriage, famíl mothers ] under die terms of Artícle 6(1) and (4) of the Basic Law. It oblig statě to address problems and diffículties that a woman might experience c pregnancy. Artícle 6 (1) and (4) expresses a binding comrnitment of prot embracing the entire sphere of public and private law, extending to the pre woman. This [task] is consistent with the comrnitment to treat motherhoc child-rearing activities as in the public interest and worthy of recognition.... fa) The care that the community owes mothers extends to an effort to p abortion in cases of existing materiál need or those that threaten the womai the birth of the child. An effort needs to be made to remedy the disadvai to women in education and employment that may result from [pregnanc childbirth]___ The duty to protéct unborn life, to defend marriage and dle family (Arti' and to secure the equality of men and women in employment (Artícle 3 together with Articles 3 and 7 of the International Covenant on Economic, i and Cultural Rights, obliges the statě, and particularly the legislature, to find to balance [the needs of ] family and employment and to ensure that child-r does not lead to disadvantages [for women]. [In a major departure from Abortion I, the court declared that non-indica abortions in the first twelve weeks of pregnancy, while unjustified, need 1 be punished. A refined systém of counseling oriented toward preserving ■ life of the fetus could now substitute for the críminal penalty. Howei Human Dignity and Personhood 355 ■tions of the Críminal Code declaring abortions performed during the first mcster of pregnancy "not illegal" were nullified. Non-indicated abortions ist remain illegal even though unpunished. In addition, the court directed , jetrisfature to adopt measures in all spheres of law to support a woman's ision in favor of life over abortion. Sections of the law governing Ger-tnv^s national health pian, which would háve covered abortions not mědily indicated, were struck down. Laws mandating that the government keep tistics on abortion in Germany that had been removed from the new legis-ion were restored. Finally, the court said that the statě could not constitu-nally děny welfare assistance to poor women who wanted non-indicated Drtíons but could not afford them. There were two dissenting opinions. The first, by Ernst Gottfried Mah-rcnholz, the Second Senate's "chief justice," which Justice Sommer joined, dissented from the majorit/s view that nonhardship abortions were to be classified as illegal in the Críminal Code. These justices felt that the Pregnancy and Family Assistance Act struck an adequate balance between the rights of life and personality under the Basic Law. Justice Ernst-Wolfgang Bócken-forde, whose participation in the čase was unsuccessfully challenged by the Sociál Democrats on the basis of his having once belonged to a right-to-life group, wrote a second dissenting opinion to question the courťs ban on paying for "illegal" abortions out of the state's medical insurance program. Whether abortions performed for serious sociál reasons should be a part of the national health pian was, in his view, a matter of legislativě discretion. ] •íotk: aetermath of abortion ii. In rejecting the 1992 abortion statute, the :ourr tossed the balí back into parliamenťs court. Until parliament acted to craft a ícw statute within the guideUnes of Abortion U, the courťs rulings would prevail in íll of Germany. It would také parliament another two years to agree on amendments :o the 1992 statute. The legislativě debatě centered on three issues: the nature and ^ctent of obligatory counseling, abortion financing, and the eriminal liability of xrsons within a pregnant womaďs sociál circle who might encourage her to prohne an abortion. These issues were being vigorously debated as this volume was ;«ing to press. A compromise bili that commanded the support of a substantial parliamentary najority provided for compulsory counseling along the lineš suggested by the Fed-;ral Cxmstitutional Court, but it seemed to require less vigorous pro-life counseling :han the court had urged. The woman would be informed by a recognized sociál igeney that the unborn child is entitled to the right to life at all stages of pregnancy ind that under Germany^ legal order a non-indicated abortion, although not pun-shable if procured after compulsory counseling within the first trimester of preg-íancy, would be permissible only ih exceptional circumstances. Counselors were