Perfectionism and Fundamentalism in the Application of the German Abortion Laws

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2015

Perfectionism And Fundamentalism In The Application Of The German Abortion Laws

Mary Anne Case

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Recommended Citation Mary Anne Case, "Perfectionism And Fundamentalism In The Application Of The German Abortion Laws," 11 FIU Law Review 149 (2015).

This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. 37792-fiu_11-1 Sheet No. 78 Side A 04/28/2016 10:11:02 OMPARATIVE , Religion and Religion , C FIU Law Review Law FIU QUALITY AND E * ENDER :G QUALITY E ) 4/15/16 4:58 PM Mary Anne Case ELETE D OT ONSTITUTING N O (D (Susan H. Williams ed., 2009). It sets out in abbreviated form portions of my my of portions form abbreviated in out sets It 2009). ed., Williams H. (Susan DOCX AW L _4.15. Perfectionism and Fundamentalism in the in Fundamentalism and Perfectionism Application of the German Abortion Laws Laws Abortion German the of Application INAL _F This put my project in a whole new light. When it comes to abortion, When When I arrived in Germany a decade ago to look more closely at the Arnold I. Shure Professor of Law, University of Chicago Law School and Fernand Braudel * ASE M K ONSTITUTIONAL Fellow, European University Institute. This essay previously is a published lightly revised and in updated version of C one you looking into abortion? That used to be an interesting question. It’s not anymore.”interesting the United States throughout my lifetime has been a victim of the proverbial Chinese curse, “May you live in interesting times.” If Germans, who my my shoulder. I was disrespectful of convinced women’s that dignity and the autonomy, in equally troubling to application supporters and opponents of abortion rights. I ways was also, of that should the be laws as was a constitutional lawyer, convinced legislature and that Constitutional Court had the reached after the compromise re-unification of the East German and West contradictions, such that it made Germany no logical sense from any was jurisprudential perspective. What hopelessly I heard from incoherent the Germans however. I and talked No to gave matter rife me pause, what abortion with their questions, all sorts of people, from ideology government officials, scholars, or level and of activists to engagement ordinary citizens, old with friends, and relatives, reaction had when the I told same them of my project. “Abortion?” they said. “Why are application of the German abortion laws, I did so with a feminist chip on C 08 - C the Law Symposium adviser Eloisa Rodriguez-Dod, Editor-in-Chief Dominique Pando Bucci, and her colleagues for inviting me to participate in their symposium and for facilitating the essay’s publication for Fellowship Policy Public Bosch Berlin’s in Academy American the to grateful also am I issue. this in funding my research in Germany; to the many participants in the shaping and application of the German abortion laws who took time to speak with me about them, most especially including officials of Donum Vitae, Maria Geiss-Wittmann and Beatrix Bundesministerium der Frank-Bauer; Justiz, the but Bundesministerium für also Familie, Senioren, Frauen officials Bavarian und Jugend; in the Pro Staatsministerium Familia, the für Staatsministerium für Arbeit und Sozialordnung, und Familie Frauen; Ernst-Wolfgang Böckenförde, and Gesundheit, Ernährung Rita Süssmuth; to und Sabine Berghahn and Kari Verbraucherschutz; Robinson abortion in for Germany; to sharing Susan the Williams with as me organizer and their to the Bavarian ongoing other Equality work participants conference; and in on to the Lyonette Louis-Jacques, Constituting Deborah Megdal and Margaret Schilt for research assistance. broader work on feminist fundamentalism and on the which I have presented at venues too numerous to list here viability and on which I have received help from more of the German abortion compromise, the to grateful most am I name. by thank to space have now I than people C Y 37792-fiu_11-1 Sheet No. 78 Side A 04/28/2016 10:11:02 A 04/28/2016 78 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 78 Side B 04/28/2016 10:11:02 M K C Y [Vol. 11:149 11:149 [Vol. (1990). S The essay ends ends essay The As I define them define I As 2 1 1970 BSOLUTES A LASH OF LASH C NIFICATION HE -U :T AW FROM THE FROM AW E L &L. 549 (2011), www.wcl.american.edu/journal/ (2011), 549 &L. R Y ’ BORTION OL ,A .P ERMAN FIU Law Review Law FIU ) 4/15/16 4:58 PM OC BORTION RIBE S G A ELETE to be found in the Vatican’s decade long struggle struggle long decade Vatican’s the in found be to H. T Feminist Fundamentalism as an Individual and Constitutional Constitutional and Individual an as Fundamentalism Feminist D 3 NTIL OT ENDER N U O ERMAN (D AURENCE L .U.J.G I. G DOCX M _4.15. Mary Anne Case, Anne Mary , 19 A INAL See See generally See I am using the words “fundamentalist” and “perfectionist” here in ways I will try to define define to try will I ways in here “perfectionist” and “fundamentalist” words the using am I _F The German and American constitutional laws of abortion have been This essay examines aspects of the German approach at the turn of the I then set forth some of my own concerns about the German approach, ASE 1 2 3 interesting mirror images decades. In both of one another for the last several the Federal Republic of Germany and the United States in the 1970s, courts 150 through much of the fiercely as Americans twentieth did, had found a way century to lift the curse, debated approach. perhaps German the of there favor in said be to something was abortion questions as millennium and of the politics Germany from the 1990s to the present from the perspective of surrounding a distinction first trimester abortions in between “perfectionist” and “fundamentalist” approaches. 08 - C beginning in the mid-1990s to re-assert Catholic fundamentalist opposition to abortion in the face of efforts by a majority of German Catholic bishops Germanthe in co-operation compromise.their continue to laity and with with an examination of for implications efforts to move abortion questions past a clash of absolutes genderlaw/documents/5_19.2.Case.pdf. precisely, which have a family resemblance, but not perfect identity, with the way the terms are used by others or in other contexts. I realize this may cause some confusion, but I have been unable to find other established or better words for the distinction I am trying to draw, nor have I found a single, consistently using.am I terms definitionthe alternate of used either of Commitment commitment to female subordination or fixed sex roles. necessarily insist on perfectionist imposing approach his has perfectionist’s principles, but or the perfectionist as may be willing to engage her in its some principles compromise goal in order to come closer to achieving this goal. The essay on compliance others. by suggests that with respect to abortion, the German legal system advances its A all with perfectionist goals by repudiating the fundamentalism, because it compromises on the condemnation of abortions in favor of measures to more effectively number.their reduce from a perspective I call feminist uncompromising fundamentalism, commitment to the by equality of the which sexes as intense and I at mean an least as worthy of respect as, for example, a religiously or culturally based herein, a fundamentalist approach is one in which no commitment compromise on to the principle is acceptable, but the fundamentalist does not 37792-fiu_11-1 Sheet No. 78 Side B 04/28/2016 10:11:02 B 04/28/2016 78 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 79 Side A 04/28/2016 10:11:02 . 605 the the 4 ROC .&P RAC in 1973, in NTSCHEIDUNGEN DES J. P ARSHALL M 151 151 According to the the to According Roe v. Wade 5 Roe v. Wade, 9 J. 7 GE] 1, 1975 (Ger.). For an English translation of this decision, ) 4/15/16 4:58 PM ERF German Abortion Laws Abortion German ELETE D [BV OT N O (D obliged the Federal Republic to be even more protective protective more even be to Republic Federal the obliged 6 DOCX GE 1, § C (I) (1) (a) (Ger.). (a) (1) (I) C § 1, GE ERF _4.15. at § A (II) (Rupp-von Brünneck & Simon, JJ., dissenting). INAL Id. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court], 39 E 39 Court], Constitutional [Federal Roe v. Wade, 410 U.S. 113 (1973). [BVerfG] Bundesverfassungsgericht 39 BV _F Like the United States Supreme Court with its trimester framework, ASE 4 5 6 7 West German Abortion Decision: A Contrast to M K UNDESVERFASSUNGSGERICHTS (Robert E. Jonas & John D. Gorby trans., 1976). 1976). trans., Gorby D. John & Jonas E. (Robert see than other nations of human life and dignity. (According to the dissenting opinion, Germany’s need to repudiate when it comes to lead abortion, its to “the that reverse conclusion, is, restraint Nazi heritage should instead, employingin criminal punishment.”) Bundesverfassungsgericht, Bundesverfassungsgericht, the German state obligation was under to an Bundesverfassungsgericht protect affirmative majority the acknowledged constitutional democracies, such as the U.S., had fetus reached a different that result, “even other but Western insisted against that, the thoroughly given to repudiate the National Socialist policy the of “destruction of mother.”life particular unworthy history of life” The of Germany, the need B 2015] overturned on constitutional abortion. In the United grounds States, beginning with legislative schemes governing 08 - C circumstances in which continuing the pregnancy pregnant would woman impose exceptional on hardships the comparable in severity to those the Bundesverfassungsgericht did legislation, not but went on to propose a constitutionally acceptable framework stop at for striking regulating abortion. Under down what was known abortion as the outlined Indications by Model the Bundesverfassungsgericht in its 1975 opinion and enacted into federal legislation in 1976, abortion remained a criminal offense except in those enumerated circumstances where expecting the woman to carry the pregnancy to term would be “too much to expect” (“unzumutbar”). These circumstances, or indications, included threats to the life or pregnant woman health (“medical indication”), of a the pregnancy which was the result of a criminal act such as rape or incest (“criminological indication”), a fetus suffering from severe birth defects (“embryopathic indication”) and a more general “social indication” or “situation of need” intended to cover Supreme Court struck down incompatible with the pregnant woman’s restrictive constitutional rights. By contrast, criminal laws in its Judgment on of February 25, abortion 1975, the German as Court Federal Constitutional decriminalization of most within abortions the performed first (“Bundesverfassungsgericht”) twelve weeks of struck pregnancy as incompatible with the fetus’s constitutionally right guaranteed down to a proposed life and human dignity. C Y 37792-fiu_11-1 Sheet No. 79 Side A 04/28/2016 10:11:02 A 04/28/2016 79 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 79 Side B 04/28/2016 10:11:02 , M K C Y [Vol. 11:149 11:149 [Vol. FIU Law Review Law FIU ) 4/15/16 4:58 PM ,Oct. 5, 1990, at A1. A1. at 1990, 5, ,Oct. the 1975 Bundesverfassungsgericht abortion abortion Bundesverfassungsgericht 1975 the 8 ELETE , Social Policy; Wall Still Divides Germany on the Abortion Question 10 German Women’s Dilemma; New Nation Confronts Abortion, Other D OT Women, too, risked prosecution, among them not not them among prosecution, risked too, Women, 9 N O (D NTELLIGENCER I , Oct. 19, 1991, at A4. at 1991, 19, Oct. , DOCX , Tamara Jones, OST , Joel Connelly, -P IMES Roe v. Wade _4.15. T INAL See, e.g. See, e.g. EATTLE Roe v. Wade, 410 U.S. 113 (1973). _F Like Nevertheless, it took the re-unification of East and West Germany to NGELES , S ASE 8 9 10 A OS Issues only the Memmingen doctor’s patients, traveled for their but abortions to the less-restrictive WestNetherlands and were met German women who at the border on their return by police searching for evidence they had had abroad. while abortion an L 152 encompassed by the other three present. were indications the of determineany to whether physicians enumerated indications. It was left to 08 - C who who took constitutional law seriously had to wonder exactly what sort of compromise could be possible, given that the Bundesverfassungsgericht’s 1975 decision rested in part on the Basic Law’s Article 1 guarantee of the inviolability of human dignity, which, as a reaction against Nazi violations abortion question. In the period from 1972 until unification, women in the German Democratic Republic amounted had to available abortion to on contraception and a them much request more extensive not and in readily available system the only state-sponsored of childcare first what than trimester was but Republic available of Germany. So attached were also the to East Germans to this aspect women of free in their laws the that, even though at Federal the moment of unification in 1990 virtually all other East German laws vanished in an instant to West be replaced by German their counterparts, the temporarily East in German place, abortion applicable laws Germany only remained to for women a from two German the legislature was year to seek former a compromise moratorium solution. East Of course, anyone period during which the united prompt the German legislature and court systematically to revisit the conservative, Catholic regions of Germany, obtaining women had more abortions difficulty prosecution. Abortion rights advocates described as a witch and hunt the widely doctors publicized 1988 criminal trial of who a doctor from the small Bavarian town of accommodated Memmingen charged with more than 150 instances of unwarranted use them of risked the social indication. decision resulted in Statistics indicating considerable that over 80 controversy percent of reported and under abortions the performed indications regime political fell under the agitation. so-called social opponents indication of abortion to claim led that the law was being applied too liberally. to obtain easier matter as a were practical abortions States, As United in the in some regions of the country than in others. Particularly in the more 37792-fiu_11-1 Sheet No. 79 Side B 04/28/2016 10:11:02 B 04/28/2016 79 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 80 Side A 04/28/2016 10:11:02 12 ASIC By By 13 ][GG][B RUNDGESETZ [G The court contemplated contemplated court The 153 153 14 OMPROMISE C . I] at arts. 1 (1), 79 (3) (Ger.). (3) 79 (1), 1 arts. at I] . EUTSCHLAND L D NIFICATION , Teil I [BGB I Teil , -U ) 4/15/16 4:58 PM UNDESREPUBLIK B OST German Abortion Laws Abortion German ELETE P D 11 OT HE N . I at 1398. at I . L O (D UNDESGESETZBLATT II. T GE 203 (Ger.). An official English translation is available at www.bundesverfassun DOCX ERF _4.15. at 217. RUNDGESETZ FÜR DIE INAL Id. Gesetz zum Schutz des vorgeburtlichen/werdenden Lebens, zur Förderung einer einer Förderung zur Lebens, vorgeburtlichen/werdenden des Schutz zum G Gesetz BV 88 _F In its Judgmentits In Mayof upheld Bundesverfassungsgericht the 1993, 28, As it had been in the 1970s, the German federal legislature, now ASE 11 12 13 14 ], May 23, 1949, B 1949, 23, May ], M K AW in Pregnancy Conflicts, colloquially known as the Pregnant Women’s and and Family Assistance Act, Regulation of Pregnancy Terminations, augmented by representatives from the former East willing than the Germany, to Bundesverfassungsgericht liberalize access was to abortion. more It also insisted, however, that its 1992 Act for the Developing Protection Life, Promotion of of Prenatal/ a More Child-Friendly Society, Assistance central features of the proposed counseling scheme, while insisting on the revision of other features to make them more unambiguously pro-life. that the counseling, and that legislation more broadly, should take into would be more effective at preventing abortion framework than had the been. prior At the legislative center of the new framework version was of a a retooled counseling requirement for pregnant women formed which part had of the also legislation rejected by the Bundesverfassungsgericht in 1975. The Act also included a congeries of provisions designed to reduce the need for abortion, including mandated increases (at least as compared to what was previously available in Germany,West East though Germany)not in the availability of day training care and and greater social protection assistance in housing such children. young mothersof the women and and as employment vocational for pregnant the terms of the Pregnant Women’s and Family Assistance Act, a who woman wished to obtain pregnancy was required an to present herself abortion at a within government government approved funded counseling and the center for counseling first to resolve twelve what described as was her “situation weeks of conflict.” At the Bundesverfassungsgericht’s of insistence, the counseling could not be merely counselors must try informational; rather to encourage the woman “the to continue her pregnancy and show her opportunities for a life with the child.” L 2015] of human dignity, had explicitly been declared in Article 79 (3) of the Basic unamendable.be to Law 08 - C kinderfreundlicheren Gesellschaft, für Hilfen Schwangerschaftsabbruchs im [Schwangeren- und Schwangerschaftskonflikt Familienhilfegesetz] und [Pregnant Women’s zur BGB 1992, Act], Assistance and Regelung Family des gsgericht.de/en/decisions/fs19930528_2bvf000290en.html. Further citations from this opinion translation. official this to be will essay in this C Y 37792-fiu_11-1 Sheet No. 80 Side A 04/28/2016 10:11:02 A 04/28/2016 80 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 80 Side B 04/28/2016 10:11:02 M K 18 C Y had had 15 the the 17 [Vol. 11:149 11:149 [Vol. decision, .L. 273 (1995). (1995). 273 .L. Casey OMP .J.C M Casey in the Mirror: Abortion, Abuse, and the , 43 A 43 , FIU Law Review Law FIU ) 4/15/16 4:58 PM ELETE D OT N O 16 (D DOCX _4.15. INAL Although the German court’s goal is unequivocally to discourage abortions, it nevertheless nevertheless it Schwangeren- und Familienhilfeänderungsgesetz (SFHÄndG) of 21 August 1995. abortions, of first trimester focus is the legal treatment It is particularly important to note that this essay’s discourage to unequivocally is goal court’s German Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). the Although _F Like the U.S. Supreme Court’s ASE 15 16 17 18 abortions only, not late term comparative abortions. perspective, see, For e.g., Gerald a L. Neuman, more detailed Germany and States United the in Protection to Right examination of the 1993 decision in Bundesverfassungsgericht’s decision of 28 May 1993 was intended to offer the possibility of a stable compromise. positions Although concerning starting the from constitutionality, opposite in abortions, principle, the results reached by of the two courts are first not as different as trimester their starting points might suggest—the preclude result the state in from imposing both an undue cases burden on through a is the pregnant restrictions woman it in imposes on effect her termination to of although her pregnancy, in the U.S. the principal woman’s reason rights, for doing while so in is Germany to protect the the emphasis is on more effective Bundesverfassungsgericht Bundesverfassungsgericht insisted it Consequentially, the would court majority remain public determined medical that insurance a scheme the could comprehensive wrongful no longer were pay not act. for medically abortions necessary. that If, however, poor the to pay for the abortion, womanthe court majority held that the herself state itself was were too authorized to pay the cost. The Bundesverfassungsgericht also insisted that comprehensive abortion statistics be maintained, because its approval of the substitution of counseling counseling for being indeed criminal more effective sanctions than the inducing women to carry their fetuses to was threat term. The compromise as amended of punishment conditioned in on by the court and eventually embodied in federal legislation in 1995 154 account all of the pressures that might bear on a woman, including external pressures from family members, sexual partners, landlords, employers, and creditors. Upon completion of the counseling, the woman would receive a certificate in effect permitting her to obtain a first trimester abortion without risk of criminal certification sanctions. of the existence She of one of the no four ultimate approved decision indications; longer the was in had her hands. to However, judge because in obtain she could her not third-party own be case, abortion, in the while absence of not third-party certification, punishable, her could also not be justified; the 08 - C scope of this paper. this of scope many many other features as well, a full explication of which would exceed the manifests a concern about undue burden on women mandates about, contemplating for abortion example, in the setting provision of forth a detailed sufficient reach of all number women in Germany, requirements that counseling not of be dragged out until it is too late counseling for a centers within easy women.poor of abortions the for funds state of availability the and abort, to woman 37792-fiu_11-1 Sheet No. 80 Side B 04/28/2016 10:11:02 B 04/28/2016 80 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 81 Side A 04/28/2016 10:11:02 EFINED D . 381 (2009). 381 . ) must do. With 20 EV L. R TAH 155 155 HARACTERISTICS C , 2009 U 2009 , Feminist Fundamentalism on the Frontier 19 decision did not—a compromise compromise not—a did decision Casey Mary Anne Case, ) 4/15/16 4:58 PM UNDAMENTALIST F German Abortion Laws Abortion German ELETE D see also OT N O (D note 2; 2; note . pmbl. . DOCX ONST supra _4.15. 21 INAL ERFECTIONIST AND ERFECTIONIST As will become clear below, I do not mean to suggest that the current state of the law in in law the of state current the that suggest to mean not do I below, clear become will As U.S. C Case, _F The remainder of this essay will use an analysis of the salient features Before applying these distinctions to the German abortion context, let ASE 19 20 21 M K III. P “We” (as in “We the people of the United .” . . States of the German abortion compromise to highlight distinctions between what I am calling “perfectionist” and “fundamentalist” approaches to a problem amI As terms, these defining abortion. which of regulation legal the as such I acknowledge others define in somewhat different ways, the hallmark fundamentalism of is perfectionism is an a willingness to impose. Another unwillingness way of formulating distinction is the that perfectionism speaks to in the second or third person—it is compromise about what “you” or “they” should and or must do, not just about what that “I” or of underplaying any tensions or contradictions. or tensions any underplaying 2015] protection for the fetus. The legal details of both their decisions, like predecessor those decisions of from the criticism. 1970s, were The readily German susceptible to complex decision and full in of apparent particular tensions and forms was contradictions. Not of all extremely of assistance the lengthy, contemplated for in pregnant Germany. women accomplished have But what the American been the implemented German many as of decision the leading participants seems in the abortion to debates enough found to attractive be have worth trying to preserve, even at the expense of ignoring or 08 - C me me offer an illustration from yet another context to help make my clear. rubric Consider a vegan invited to a meal at which the host serves paella, a rice dish made with meat and shellfish. The host’s proposed solution is that Germany raises no objections or that all abortion questions are deemed settled.deemed are questions abortion all that or objections no raises Germany Between Government and Family Responsibility for Children for Responsibility Family and Government Between respect to any fundamentalist deeply and perfectionist, neither held perfectionist nor commitment, fundamentalist, fundamentalist it without is being fundamentalist. possible With respect perfectionist, to to any commitment be or or individual set actors of within both commitments, a perfectionist legal system, as well but as the can decide legal not system to compromise itself, not without wishing to impose or can decide to impose and perhaps in the interests of that imposition, compromise. In other work, I have perfectionism in ongoing debates on explored issues including the legal regulation of the distinctions marriage, veiling and sex and segregation, the teaching of between values in public fundamentalism and schools. C Y 37792-fiu_11-1 Sheet No. 81 Side A 04/28/2016 10:11:02 A 04/28/2016 81 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 81 Side B 04/28/2016 10:11:02 M K C Y [Vol. 11:149 11:149 [Vol. FIU Law Review Law FIU ) 4/15/16 4:58 PM ELETE D OT N O (D abortion in Germany can be paradoxically at once once at paradoxically be can Germany in abortion DOCX Harris v. McRae, 448 U.S. 297 (1980) (upholding prohibition on the use of Medicaid of use the on prohibition (upholding (1980) 297 U.S. 448 McRae, v. Harris 22 _4.15. INAL See, e.g., See, _F The simultaneous denial of insurance coverage for most abortions and As I see it, the German abortion compromise as crafted by the Some might be tempted to see a heritage of eugenics in the German ASE 22 funds to perform abortions except in cases of rape, incest, or danger to the life of the pregnant woman). woman). incest,pregnant the rape, of of cases life in the except to danger abortions perform or to funds counselors to try to talk her out of it first. it of out her talk to try to counselors insistence on authorization of government payments for poor the women abortions is of similarly paradoxical from Under this scheme, the will government not a only be but permitting, paying fundamentalist perspective. for, wrongful acts contravening constitutional norms. This introduces a new element into the division of acts along one axis into condemned protected, permitted, and along another into subsidized, While unsubsidized, and abortion taxed. unsubsidized, in the United States is famously protected but meal. meal. legislature and amended by the court without is being in fundamentalist. important ways It perfectionist began important thing about fromabortions is not that they be condemned but the that they premise that the be prevented. Given that most the threat of criminal punishment had not worked to prevent abortions, it was possible that counseling, whose purpose was to protect the fetus, not “against the mother” but with her cooperation, could be more effective. Substituting counseling for the threat of punishment was thus worth trying, even though the allow somewhat a woman paradoxical to result engage was with impunity to constitutional in a wrongful norms act contravening provided that she allow government authorized 156 the vegan guest can just scoop out the pieces of meat and shellfish from the dish. A fundamentalist vegan is someone for whom just scooping them out is not an acceptable option. comfortable sitting down to a meal at which Some others are eating meat, so long fundamentalist vegans are as perfectly their own portion perfectionist might is insist that only vegan food be served completely to everyone at the untainted. But table. And one with one perfectionist, but not fundamentalist, who tendencies might is also consider it a an acceptable compromise if everyone’s flavored with shellfish stock, portion but no other meat or fish of were included in the rice were 08 - C individual rights state. commitmentsocial a be state the that and responsibilities and a government’s German willingness to constitutional pay disproportionate for number of the whom abortions can be of ethnic predicted German poor to origin. be women, But of a a other closer than look at the regulations on abortion condemned and subsidized. One way to account for this difference is as an instantiation of the broader contrast between an American commitment to 37792-fiu_11-1 Sheet No. 81 Side B 04/28/2016 10:11:02 B 04/28/2016 81 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 82 Side A 04/28/2016 10:11:02 May May , IMES T ERLAUF EINES V , N.Y. ONCERNS RSACHEN UND C :U 157 157 OMPROMISE C EUTSCHLAND D ERMAN UNDAMENTALIST G F was not enthusiastic. I was particularly particularly was I enthusiastic. not was ) 4/15/16 4:58 PM 25 BTREIBUNG IN German Abortion Laws Abortion German A ELETE D EMINIST OT F N ABOUT THE ABOUT O Y and some abortion opponents calling it an unprincipled unprincipled an it calling opponents abortion some and (D 24 M IRCHE UND DOCX ,K IV. German Court Restricts Abortion, Angering Feminists and the East Again, the court’s explanation is one that privileges a a privileges that one is explanation court’s the Again, _4.15. 23 105 (2d ed. 2008). PIEKER S INAL Regine Hildebrandt, minister for social affairs in the state of Brandenburg, as quoted in in quoted as Brandenburg, of state the in affairs would in percent 65 approximately from social region, by varies abortions for financed state of percentage The fundamentalists, minister feminist be would Hildebrandt, terms my by who Regine those even feminists, all Not _F The Bundesverfassungsgericht’s Judgment of May 28, 1993 was not My My own initial reaction to the 1992 decision, from my feminist ASE 23 24 25 M K ANFRED ONFLIKTES perfectionist attempt to prevent abortions over a fundamentalist insistence that the state keep its hands clean: payments for were poor women’s necessary abortions to the success of the counseling them scheme because women without might bypass physician counseling entirely, risking and their the health and services them. on bear to brought being influence effective foreclosing of the possibility a of licensed greeted with universal acclaim, with some feminists calling it a “return to the Middle Ages” 29, 1993, at 1. at 1993, 29, abdication of the state’s duty to protect fetal life. fetal protect to duty state’s the of abdication K 2015] payments and their application reveals the legislatures, still in general more liberal than the court on abortion issues, to following: it was left to determine what the qualified a woman as needy enough to paid have for her by abortion the state. The adopted income thresholds were generous, not but only quite also count only spouse a or other family members, woman’s or her illiquid assets. own The result, not until income, not recently that of widely her publicized, obligation to prevent abortions, nevertheless is pays for more than 80 percent that of the state, them. under a constitutional 08 - C conservative Catholic Bavaria to approximately 95 percent M in more liberal North Rhine-Westphalia. Stephen Kinzer, agree with me. Like the religious commitments to which I am pressing an analogy in my use of the term “fundamentalist,” feminist commitments can vary in content as those within a well faith tradition, diverge as somewhat in in their beliefs and character. in their Feminists, views of what like their beliefs require of them. Moreover, many committed feminists, like many devout religious believers, would not it. define I as fundamentalist term the by described accurately be nor embrace fundamentalist perspective, troubled that the counseling uniquely scheme unable to encourages make responsible a decisions without view aid. intensified My when of I concerns looked women at abortion counseling as in light of the the regulation of women history as mothers under Germanof law: until the 1970s, for example, a guardian, with decision-making authority from required the state, to was be appointed for every child of any unmarried mother, C Y 37792-fiu_11-1 Sheet No. 82 Side A 04/28/2016 10:11:02 A 04/28/2016 82 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 82 Side B 04/28/2016 10:11:02 M K C Y OMEN ?W AKE M [Vol. 11:149 11:149 [Vol. USBAND H OES A D 151–55 (1989). 151–55 IFFERENCE D HAT ) 4/25/16 9:31 PM ERMANY G ,W ELETE D FIU Law Review Law FIU OT N OSTWAR EINEMAN P O (D D. H DOCX AZI AND AZI N 158. LIZABETH PAGE E United States, that put the ultimate decision whether a woman woman a whether decision ultimate the put that States, United TATUS IN TATUS S _4.25 Unlike pregnant women, young men who sought to qualify for for qualify to sought who men young women, pregnant Unlike 27 INAL See, e.g., My concerns would be abated if the counseling scheme were not so so not were scheme counseling the if abated be would concerns My This procedure is no longer in effect, given that in the united German population at present present at population German united the in that given effect, in longer no is procedure This _F 26 ARITAL Let me stress three things: First, the response of feminist supporters of My own inclination was to compare mandatory abortion counseling to counseling abortion was to My mandatory compare own inclination ASE 26 27 M counseling as a useful tool for discouraging abortion. On the other hand, an uncompromising focus on sex equality under law might perhaps lead some to the conclusion that it responsible legal better actors befits to send women’s so. do they them before counseling dignity mandatory to jail as for independent aborting, rather than to the West German procedure for conscientious objection by young men mandatory to military traditionally had been more of an adversarial examination than a counseling service session. (“Kriegsdienstverweigerung”), which the Germanthe compromiseabortion compromisethe end, the in that, be would puts the ultimate decision whether pregnant or woman; not it to can abort thus in be decision-making ability the seen than prior hands as schemes, in both more of Germany and respectful the the pre- of Roe v. Wade a woman’s was in a condition of proceed sufficient with distress an that abortion she in should the Second, my concerns apply only be to mandatory, not to hands voluntary counseling. allowed of to third parties such Third, as doctors. these concerns about independent of any mandatory underlying commitment on counseling, abortion. Thus, those who are, favor abortion rights inmay see counseling as an my acceptable price to pay view, for the ultimate opportunity to abort, while those who oppose abortion may see anomalous anomalous in present-day German law. If, for example, counseling were a well-established, frequently German law, encountered if persons seeking to engage practice in a required wide to variety undergo of counseling under acts beforehand, were my concerns would not be present-day as strong. As things stand, however, pregnant women are uniquely seen as in makingdecisions. requiringin uniquely guidance counseling, of need 158 regardless of the mother’s age, fitness as a parent, economic or educational level. 08 - C however, readily imagine how a counseling approach might work. (“Listen, son, it’s not really so bad in the army, doesn’t it? and You the want country to needs do your defending, part, don’t you? Think what it over. extent . do . .”) intractable To differences between the two situations and to alternative service were not treated as guidance, but were necessarily instead presumed in to know their need own mind. One of could, advice or there are far more young men eligible for potential military service than the German military currently draft. to need has AND 37792-fiu_11-1 Sheet No. 82 Side B 04/28/2016 10:11:02 B 04/28/2016 82 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 83 Side A 04/28/2016 10:11:02 159 159 ) 4/15/16 4:58 PM German Abortion Laws Abortion German ELETE D OT N O (D DOCX _4.15. INAL _F demand at the same time a constitutional prohibition legal whereby areas, other in than penal all law, women who have had a termination are to be treated without distinction as having acting wrongly and are to have no chance to defend themselves. Women are supposed to use the legal system’s requirements for the protection orientation, of nonetheless unborn life even as when remain—by virtue of the constitutional they order—wrong. That is not only do their actions contradictory—it also affects the woman’s person, her are honor and legal and If women who are considering pregnancy termination are called upon to show responsibility in this way according to and the if requirements of they the are law, it expected is to then act contradictory to Once again, it seems to me that having concerns from a feminist A second set of feminist concerns arises for me from the abortion ASE M K independent of one’s underlying views on the abortion question. Supporting evidence for my supposition constitutional court can judge be Ernst-Wolfgang Böckenförde. found supporters Abortion had in rights urged the unsuccessfully that partial participating in the Bundesverfassungsgericht’s Böckenförde 1993 abortion case because dissent be recused of from of his Nevertheless, prominent in his opinion dissenting in support part, Böckenförde objected that the majority had unnecessarily for denied to women the opportunity previously Catholic abortions: their themjustify to to available anti-abortion organizations. under-publicized consequence of these generous regulations is that, in the aftermath of a decision reaffirming trumpeting abortion’s wrongfulness constitutional and loudly restrictions overwhelming majority on of abortions payments are paid alone for is worthy of attention. In addition, however, it is worth noting that the for by abortions, the state. the This group of women fact most by the directly 1993 disadvantaged decision are those who could have justified their abortions and had them paid for by insurance under the old scheme but, because they are wage-earners in their own right, must now pay for abortions without being given previously the available to justify themselves. same opportunities fundamentalist perspective about this aspect of the abortion decision can be 2015] what extent do norms of masculinity and femininity help differences account in for approach? the One question worth posing is whether approachbeneficial. mightcounseling be a of applicability broader and increased financing regulations put in place after the May 1993 above, decision. As regulations noted implementing the straitened financial decision circumstances very broadly, interpreted such that, in the theory, even the non-wage earning mother’swife of a rich man, because she earns no income and may have no liquid assets in her own name, can qualify for state aid. One 08 - C C Y 37792-fiu_11-1 Sheet No. 83 Side A 04/28/2016 10:11:02 A 04/28/2016 83 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 83 Side B 04/28/2016 10:11:02 M K C Y note note supra , [Vol. 11:149 11:149 [Vol. Spieker 29 HURCH (2000) (including full text of relevant C UNDAMENTALISM IN THE IN UNDAMENTALISM ATHOLIC F C Bishop Lehmann said he was particularly FIU Law Review Law FIU ) 4/15/16 4:58 PM 30 ELETE D OT N note 29, at 81. Der Streit um den Beratungsschein O ESPONSE OF THE OF ESPONSE , (D R ERFECTIONISM AND ERFECTIONISM supra , P GE 203, at 427 (Ger.) (Böckenförde, J., concurring in part and dissenting in part).in dissenting and part in concurring J., (Böckenförde, (Ger.) 427 at 203, GE DOCX V. ERF 28 _4.15. ECKMANN INAL Among the most detailed historical and analytical accounts of the interactions of the German German the of interactions the of accounts analytical and 88 BV historical detailed most the Among B Rainer Beckmann _F That legislators and judges on various sides of the abortion question in status. From the beginning, a small minority of German Catholic clergy and The court’s majority opinion and subsequent legislation set forth in ASE 28 29 30 In addition to sharing Böckenförde’s concerns, aspect of I the decision fear was that ultimately worked the out way in regime the this abortion may funding fit with a broader privilege tendency in the German law interests and women.professional independent society of to housewives more generally over those of documents from 1995-99). from documents Bundesverfassungsgericht’s 1993 decision, saying, “the real winner [in this case] is the human being.” Germany were prepared to compromise equilibrium in may not hopes seem of More remarkable. surprising, achieving perhaps, a was response the of stable a significant majority of the bishops and laity Catholic of Church the German to the substitution of a focusing counseling on criminal regime punishment for as a a means regime of discouraging abortions the first in trimester, as authorized by the Like Bundesverfassungsgericht. the Vatican and the Germany American was strongly opposed to abortion. Nevertheless, Catholic the then head of Church, the the German Catholic Bishops’ Conference, Catholic Bishop Karl Lehmann, reacted Church enthusiastically in to the counseling scheme outlined in the 160 08 - C Catholic hierarchy and laity and the Vatican concerning the application of the German abortion laws are two books written from perspectives generally supportive of the Vatican position, 23, and laity resisted the counseling involvement regime, taking a position of that was uncompromising, their or, in my Church in the new abortion pleased to see that the new scheme contemplated that the responsibility to protect life would extend beyond large. at society the and circle family social and the pregnant woman herself into her detail the requirement for government funded counseling centers to be set up in all parts of Germany. Initially, some were authorized to be run by the regional governments themselves, others by physicians, and many by Familia Pro (the German equivalent however, many of were Planned also authorized Parenthood). to GermanCharities). the Catholic Caritas, of through equivalent (typically Remarkably, be run by the Catholic Church 37792-fiu_11-1 Sheet No. 83 Side B 04/28/2016 10:11:02 B 04/28/2016 83 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 84 Side A 04/28/2016 10:11:02 31 161 161 Little Sisters of the Poor Home For the , 983 F. Supp. 2d 576 (W.D. Pa. 2015), Zubik v. Burwell ) 4/15/16 4:58 PM German Abortion Laws Abortion German ELETE D OT N O (D DOCX , 134 S. Ct. 1022 (2014), and _4.15. INAL Compare the objections of the Catholic petitioners in in petitioners Catholic the of objections the Compare _F After After evading for five years deadlines for Vatican-imposed ceasing to The overwhelming majority of the German Catholic bishops, however, ASE 31 M K William William Levada, directed the German supporting Bishops to Donum stop Vitae. Catholics Like from women the and bishops before men them, of continued, however, Donum not only in the Vitae their counseling, but resisted in their conviction the that it was Vatican directives and abortions, in the end, the German Catholic bishops were indeed forced withdraw from to participation in state-sponsored counseling, but the place of the Church itself was taken by organizations of committed pro-life Catholic laity, notably Donum Vitae (Latin purpose in for September “gift 1999. The of Pope and life”), attention the founded Vatican to then for turned condemning their this and organizations of Catholics in abortion counseling. trying After the elevation to the to stop the papacy of German-born Joseph Cardinal Ratzinger, who, participation while head of the of these Congregation for the Doctrine of the Faith had himself communicated with the German Bishops directing them to cease and desist offering counseling certificates, his successor as Congregation of head the Roman and of Universal Inquisition, American what Cardinal used to be known as the unambiguous and insistent directives from the Vatican and from the Pope himself to stop. The bishops’ tenacious but ultimately unsuccessful efforts to dissuade the Vatican from its fundamentalist insistence on keeping Church the from any involvement compromise centered on an argument whatsoever that Catholic counseling centers had with the an opportunity to dissuade women from aborting and thereby could save the German abortion lives of their unborn children. Thousands owed their of lives children, to said the the Church’s counseling bishops, withdrawal centers, from and it counseling, would rather be than its its innocent. the of deaths the in implicateChurch would the continued participation, that issue certificates of abortion counseling that could be used to obtain supported the full participation sponsored counseling scheme. Even more remarkably, they continued to do of the Catholic so over Church a in period the of state- many years in the face of repeated, increasingly 2015] terminology, fundamentalist, to wit that sponsored counseling given pregnant women were issued a certificate that which they at the end could of use to state- obtain an abortion without risk counseling centers were essentially providing these of women a license to kill, criminal punishment, the way.any membersin its facilitate and to somethingChurch not the ought 08 - C Aged v. Sebelius who similarly object to signing forms or otherwise participating in a process they believe would make them complicit in the provision Act.Care Affordable the of provisions of contraceptives and abortifacients to their employees under the C Y 37792-fiu_11-1 Sheet No. 84 Side A 04/28/2016 10:11:02 A 04/28/2016 84 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 84 Side B 04/28/2016 10:11:02 M K C Y State available at at available [Vol. 11:149 11:149 [Vol. the women of Donum Vitae, in the the in Vitae, Donum of women the 32 FIU Law Review Law FIU ) 4/15/16 4:58 PM ELETE D OT N O (D DOCX _4.15. Like much about the German compromise, this attitude on the part part the on attitude this compromise, German the about much Like INAL For an overview of U.S. state laws mandating counseling, see Guttmacher Institute, Institute, Guttmacher see counseling, mandating laws state U.S. of overview an For Personal communications with members of Donum Vitae, Munich, Germany,June 2002. 33 _F Also in the spirit of the German compromise, the Donum Vitae What What lessons can be drawn from the ongoing battle between Donum ASE 32 33 Wasn’t Wasn’t this for difficult them as I Catholics, asked some of the women of Donum Vitae, given contraception as well as abortion? Of course not, they responded with some that their puzzlement: every Church successful contraception is forbad an need to abortion artificial happen; that contraception does may means not be bad, worse. but of abortion is much, much as the Bundesverfassungsgericht required, to “show [the pregnant woman] opportunities for a life with the child,” not to abort. she should cancer threaten her with regret or counselors repudiate fundamentalism in the interests of perfectionism. The rules governing abortion counseling centers also require to provide sex state-sponsored education, including the counseling use of contraceptives. spirit of the German constitutional compromise itself, aimwhose supportive, but finger-wagging, not is, root its at is that approach appear to have an the counselors who lie in wait clinics in for the U.S. women or at the legislators the who entrances American seek women to seeking of mandate abortions, abortion counseling for 162 faith. Catholic their by required not if with consistent Vitae and the Vatican over participation in the abortion counseling regime? get never can abortion of issue the that evidence see might pessimist a Well, beyond a clash of absolutes, with fundamentalists ever ready to upset any hope of stable compromise. with the women But, of having spent some time Donum Vitae in Bavaria, I think there might be more optimistic lessons as well, especially when I contrast their approach among with abortion rights that opponents morein the prevalent United States. Unlike so many of 08 - C Policies in Brief as of March 1, www.guttmacher.org/sites/default/files/pdfs/spibs/spib_MWPA.pdf. 2016: Counseling and Waiting Periods for Abortion of Catholic activists is worthy of further opponents of study abortion in the at United States are likely a to let fundamentalism time when religious dictate their agenda, and, in recent years, actors they can control, the opposing not only abortion funding, but also agenda access of the government informationcontraception. and about to 37792-fiu_11-1 Sheet No. 84 Side B 04/28/2016 10:11:02 B 04/28/2016 84 Side Sheet No. 37792-fiu_11-1