Americans upset with the U.S. Supreme Court’s abortion jurisprudence –ROE V. WADE in particular – would be well advised to pay attention to how Germany’s Federal Constitutional Court has resolved the controversy over abortion in a religiously divided and morally pluralistic society.
In two major decisions handed down in 1975 and 1993 respectively, the German Court, departing from ROE in nearly every respect, sought to “optimize,” as the Germans like to put it, the constitutional values associated with both the pro-life and pro-choice positions. As for unborn life, the Constitutional Court declared that the fetus, although not a person in the full sense, is nevertheless a “human life” suffused with the dignity that the state is bound to respect and foster under the Basic Law (Germany’s Constitution); that this life may be said to begin biologically from the fourteenth day after conception (the point of implantation); and that abortion at any stage of pregnancy (after the fourteenth day) is “an act of killing” that the law must define as “illegal” and in principle morally unacceptable. The Supreme Court, by contrast, failed to recognize the humanity of the fetus, declined to say when life begins, and held that women have a constitutional right to abort their pregnancies on demand in the first six months of pregnancy.
In its 1993 ruling, the German Court went on to declare that the pregnant woman may nevertheless, out of respect for her constitutional right to personal self-determination, choose to have an abortion within the first 12 weeks of pregnancy; that if she so chooses, she must by law submit to counseling that underscores the goal of preserving unborn life; that the counseling must be non-threatening, deal sympathetically with the woman’s “conflict situation,” and insure that she is aware of the significance of the life germinating within her; that if she still wants to abort her fetus after counseling and a three day waiting period, a certificate authorizing the abortion must be issued forthwith; and that such abortions, although remaining “illegal” in the eyes of the law, will not be punished. All other abortions after the first trimester of pregnancy are forbidden unless it can be shown that a pregnancy threatens the life of the mother, reveals fetal deformities, or results from rape or incest.
The 1993 case resulted from the court’s review of an abortion statute enacted in the aftermath of Germany’s reunification. The statute was laboriously crafted to reflect the Reunification Treaty’s demand for “a better solution in conformity with the Constitution of conflict situations faced by pregnant women. . .than is the case in either part of Germany at present.” (East Germany had permitted abortion on demand in the first trimester, whereas West Germany had banned all such abortions unless the woman could demonstrate that her pregnancy resulted in “severe social hardship.”) Although the ensuing legislation included provisions that tried to balance respect for unborn life with the right to self-determination, the court ruled that the parliament had not done enough to reflect the significance of the right to life under the Basic Law.
Accordingly, the court required parliament to strengthen existing laws designed to facilitate a woman’s decision to carry her pregnancy to term. These laws would include financial aid as well as measures to insure that a woman choosing to carry her pregnancy to term would not be disadvantaged in education, employment, housing, or the market place. The court’s guidelines even included proposals to punish lovers, husbands, close friends, relatives, and other third parties who would pressure a woman into having an abortion, all for the purpose of creating a moral climate consistent with the legal value the Basic Law accords to unborn life.
It is noteworthy that the abortion debate in Germany has shaped up quite differently than in the United States. The American debate, on and off the Supreme Court, has degenerated into a zero-sum game of winners and losers. The German debate, by contrast, on and off the Constitutional Court, has been a bridge-building effort that seeks to honor the values associated with the rights both to life and self-determination. Equally noteworthy is the equanimity with which Germany’s Catholic bishops have been able to live with this settlement.
Donald P. Kommers
Emeritus Professor of Law and Political Science
There is much to admire in German constitutional jurisprudence, and much that we have to gain from studying the nuanced ways in which the German Constitutional Court has faced a variety of questions relating to human dignity and well-being in modern, pluralistic, democratic societies. My colleague Don Kommers has done more than anyone else to help make it possible for us to learn from German legal experience in these areas. In many ways I am sympathetic with his claim that the German model of abortion jurisprudence is commendable. For instance, relative to the U.S. Supreme Court, the German Court is comparatively honest in its factual description of abortion as the taking of a human life, and in its recognition that women facing crisis pregnancies can be subject to enormous social and economic pressures that often make abortion far from a free affirmation of their self-determination. The German Court has exercised its power of judicial review in a way that invited, and even required, ongoing political and legislative engagement with the problem. By contrast, the U.S. Supreme Court, by constitutionalizing an extreme version of autonomy rights in relation to abortion, effectively foreclosed the ordinary political dynamics of persuasion and popular participation and in so doing fomented exactly the kind of polarized social conflict that stymies our public discourse today. For these reasons and others, our immersion in the German experience can make us better able to identify and critique the shortcomings of our own abortion law.
And yet, even if one were to conclude that the German approach is on the whole more satisfying, it would be a mistake to suppose that the U.S. should, or even could in any unproblematic way, “follow” the German example. Legal constructs exist in the context of much thicker cultural realities and cannot easily be disentangled from them. In this case, the deeper differences between U.S. and German conceptions of constitutional order, society, and the common good make it very unlikely that any juridical-political settlement on one side of the Atlantic could (or should) be translated easily into an effective solution on the other.
Differences abound, and go to the heart of our traditions of law, government, and rights. For example, the German model relies heavily on a conception of the state as the affirmative guarantor of all constitutional values, even in the private sphere. “The duty of the State to protect is comprehensive,” the German Constitutional Court said in its 1975 abortion case. This is a profound contrast to the U.S. approach, historically, to the constitution and the role of the state, and the German view of the affirmative obligations of the state is of a piece with its extensive state system of economic and social support that surrounds and undergirds the abortion context. Another difference lies in the radically different structures of federalism in the two constitutional systems; the U.S. debate cannot help being profoundly conditioned by the history and politics of federalism in a way that the German decisions are not (even though Germany is administratively a federal system, there is essentially a unified federal law in all the relevant areas, unlike in the U.S.). American critics of the German abortion jurisprudence find it untenable to suppose that our system could, like the German system does, withstand the structural contradiction of declaring an action “illegal” and yet simultaneously offering extensive state support for it (note that notwithstanding the waiting periods and counseling and economic support for expectant mothers, abortion in the end is publicly financed in Germany). In this sense, even while the German Court is much more frank than its American counterpart in acknowledging that abortion necessarily involves the killing of a human being, it could hardly be said that German law fully recognizes the humanity of unborn life; on the contrary, it discriminates against the unborn in the guarantee of their right to life in a way that no law would do for any other category of human beings. This implicitly reflects a conception of “fundamental rights” that would be quite problematic in the American juridical tradition, to say the least.
In addition, it would be good to avoid overlooking the larger European environment in which German law is situated. The crafted juridical balance that Germany exhibited in its constitutional jurisprudence in 1975 and 1993 exists in a far different context now, one in which European regional law and politics continues to exercise increasing control over social issues, including abortion, and is increasingly aggressive in mandating the liberalization of abortion laws. We should not be surprised if the German model comes under siege in Germany itself before long.
We should indeed study and learn from the German – and Italian, and Chilean, and other countries’ – experience and jurisprudence. Prof. Kommers has helped us to do so over a long and distinguished scholarly career. In the end, though, we need to come back home from those peregrinations and ask what is best suited both to the universal moral truths to which we try to be faithful – in this case, that all human beings have equal moral worth – and also to the particularities of our tradition and culture that necessarily constrain and condition our law and politics.
Paolo Carozza
Professor of Law
Professor Kommers and I have been colleagues on the Law School faculty since before most readers of THE IRISH ROVER were born. He is a good friend and we share loyalties, among others, to the United States Marine Corps and the Green Bay Packers. Prof. Kommers has earned recognition as probably the leading authority on the German constitutional system, including its treatment of the abortion issue. His descriptions of the 1975 and 1993 decisions of the German Federal Constitutional Court may therefore be safely taken to the bank as accurate descriptions of those decisions.
Prof. Kommers suggests that “Americans upset with the U.S. Supreme Court’s abortion jurisprudence” should consider the “bridge-building effort” of the German debate. The decisions of the German court underlying that “bridge-building effort,” unfortunately, suffer from a factual unreality and legal incoherence.
The first reality involved is that human life begins at the joinder of the sperm and ovum, i.e., fertilization or conception (some describe “conception” wrongly as a process over time). When Louise Brown, the world’s first “test-tube baby,” was born in 1978, the world knew exactly when her life began—at the joinder of the sperm and ovum in the in vitro process. I omit reference to the abundant scientific confirmation of this reality. The new human being, a one-cell zygote, becomes an embryo and travels to the womb where it implants and receives nourishment and protection from the mother until birth. But the embryo has been a living human being from fertilization. After about seven weeks, he is described as a fetus, which is Latin for a young one in the womb.
The 1975 ruling of the German court, as Kommers says, “declared that the fetus, although not a person in the full sense, is nevertheless a ‘human life’ suffused with the dignity that the state is bound to respect and foster.” After that noble affirmation, the Court let the air out of the tire by declaring, in Kommers’ words, “that this life may be said to begin biologically from the fourteenth day after conception (the point of implantation); and that abortion, at any stage of pregnancy (after the fourteenth day) is ‘an act of killing’ that the law must define as ‘illegal’ and in principle morally unacceptable.”
To say that human life begins, not at fertilization but at implantation is a denial of scientific reality. More important, it legitimizes the abortifacient pills and devices which kill the developing child, not by surgical abortion but by preventing his implantation in the womb. Such early abortifacients are treated in American law as contraceptives. They are the dominant abortions of the near future and increasingly of the present. A politician who wants to be “pro-life” can declare himself opposed to “abortion” while giving a free pass to early abortion as “contraception.”
After describing the 1975 ruling of the German Court, Kommers briefly and incompletely describes the Supreme Court’s ruling in Roe v. Wade. He says that ROE held, in his words, “that women have a constitutional right to abort their pregnancies on demand in the first six months of pregnancy.” He omits mention of an inconvenient edict in Roe and the companion case of DOE V. BOLTON. According to ROE, even after viability, when the state may regulate and even prohibit abortion, the state may not prohibit abortion ‘where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ The health of the mother, as specified in DOE V. BOLTON, includes her psychological as well as physical well-being. And ‘the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the mother.’ This is effectively a sanction for permissive abortion, not only in the first six months, but at every stage of pregnancy until birth and even, with “partial birth abortion,” during birth.
The essential holding of ROE is that the unborn child is not a ‘person’ within the meaning of the Fourteenth Amendment, which protects the right to life of persons. In ROE, the Supreme Court said that if the personhood of the unborn child were established, the pro-abortion case “collapses, for the fetus’ right to life is then guaranteed by the [Fourteenth] Amendment.” The denial of legal personhood is a denial of the right to live in a system in which that right is possessed only by persons.
That denial of personhood embodies the principle by which the Nazi regime, beginning with the Nuremberg laws of 1935, deprived Jews and other rejected minorities of the legal protections accorded to German citizens, including the right to live.
“In its 1993 ruling,” Prof. Kommers notes, “the German Court went on to declare that the pregnant woman may … out of respect for her … right to … self-determination, choose to have an abortion within the first 12 weeks of pregnancy; that if she so chooses, she must … submit to counseling that underscores the goal of preserving unborn life; that the counseling must be non-threatening, deal sympathetically with the woman’s ‘conflict situation,’ and insure that she is aware of the significance of the life germinating within her; that if she still wants to abort her fetus after counseling and a three day waiting period, a certificate authorizing the abortion must be issued forthwith; and that such abortions, although remaining ‘illegal’ in the eyes of the law, will not be punished. All other abortions after the first trimester of pregnancy are forbidden unless it can be shown that a pregnancy threatens the life of the mother, reveals fetal deformities, or results from rape or incest.”
That piece of judicial incoherence abandons the duty of the state to use the force of law to protect innocent life. It offers instead an intricate formula to persuade the mother not to kill her child. If the mother is unpersuaded, her killing of that child will be “illegal” but not punished. She can even skip the persuasion process and still kill her child if she can satisfy one of three exceptions, including the inevitably flexible “life of the mother” exception.
That complicated edict of the German court conflicts with a basic principle of any civilized jurisprudence. As St. Thomas Aquinas put it, “human laws do not forbid all vices… but only the more grievous vices… without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft, and suchlike.” Abortion is murder in the moral, but not the legal, sense because it is the directly intended taking of human life without justification. “The moral gravity of procured abortion,” said John Paul II in EVANGELIUM VITAE, “is apparent in all its truth if we recognize that we are dealing with murder.” Nor is this a merely Catholic conclusion. As Rev. Christian Bartholdly, a Danish Lutheran, said in 1965, permissive abortion was turning his country into “a nation of murderers.” Abortion, said Dietrich Bonhoeffer, “is nothing but murder.”
The governing principle of society, as John Paul II and Benedict XVI emphasize, is the dignity of the person. On no other issue is the dignity of the person more at stake than on the right to live, including that of the unborn. The civil law therefore must impose “appropriate penal sanctions for every deliberate violation of the [unborn] child’s rights.” Instruction on Bioethics, III. The principle here is that “civil law…. can never presume to legitimize… an offence against other persons caused by the disregard of so fundamental a right as the right to life…. Consequently, a civil law authorizing abortion or euthanasia ceases by that very fact to be a true, morally binding civil law.”
Professor Kommers, after describing Germany’s abortion solution, says, “The German debate… has been a bridge-building effort… to honor the values associated with the rights both to life and self-determination.” It is nothing of the sort. One person’s right to “self-determination” can never legitimately include the right to murder an innocent human being.
The law is an educator. In American culture, the intentional infliction of death upon the innocent is widely seen as an optional problem solving technique. The shootings at Columbine High School are no longer unique. Legalized abortion is a prime example of disposal of the innocent as a solution to a problem. So is euthanasia. The execution of Terri Schiavo by starvation and dehydration is replicated every day, without notice, whenever the family and caregivers agree that the incompetent patient would prefer what the Nazis used to call “a merciful release.” It is fair to say that the legalization of the permissive killing of the unborn has contributed to that development of what John Paul rightly called a “culture of death.”
Prof. Kommers’ effort to find a common ground between supporters and opponents of legalized abortion offers nothing new. The Beltway “pro-life” movement has sought such a compromise for the past four decades through a states’ rights approach and the allowance of exceptions from an abortion prohibition. Such proposals endorse the principle of Roe that the unborn child is a nonperson. If an innocent human being is legally subject to execution whenever a state legislature or another person so decrees, he is, in the eyes of the United States Constitution, a non-person.
Today, it is highly unlikely, at best, that American law will restore full legal protection to the lives of the youngest human beings in the foreseeable future. Rather, said John Paul II, “we must build a new culture of life…. The first… step towards this cultural transformation consists in forming consciences with regard to the incomparable and inviolable worth of every human life.” What is needed is the reconversion of the American people to the conviction that the right to life is inviolable because it is the gift of God. The Kommers recommendation of the German formula for permissive killing of the innocent works against that effort to build a “culture of life.”
Incidentally, it is disappointing that Prof. Kommers finds confirmation of the German effort at compromise of the noncompromisable in “the equanimity with which Germany’s Catholic bishops have been able to live with this settlement.” What can one say? In the past few years the greatest cross for the Catholic Church to bear has been the failure, on various issues, of Catholic bishops to be willing to bish. The fact that German bishops are willing to “live with” such an incoherent and destructive approach to the right to life tells us much about those bishops. But it does not change the reality of the life-or-death choice they are unwilling to confront.
In short, I hope that Don Kommers will reconsider his position. The American pro-life people he describes dismissively as players in “a zero-sum game of winners and losers” are fully in contact with reality. He—and the German Court— are not. On the other hand, I offer Don this assurance—The Pack Will Be Back.
Charles Rice
Professor Emeritus of Law
