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The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law Vanessa Macdonnell

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The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law Vanessa Macdonnell Osgoode Hall Law Journal Volume 50, Issue 4 (Summer 2013) Article 9 The Voices at Work North American Workshop Guest Editors: Sara Slinn & Eric Tucker The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law Vanessa MacDonnell Jula Hughes Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Part of the Constitutional Law Commons Special Issue Article Citation Information MacDonnell, Vanessa and Hughes, Jula. "The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law." Osgoode Hall Law Journal 50.4 (2013) : 999-1050. http://digitalcommons.osgoode.yorku.ca/ohlj/vol50/iss4/9 This Special Issue Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law Abstract In the First and Second Abortion decisions, the German Constitutional Court drew on earlier jurisprudence to hold that the state was under a constitutional duty to protect the fetus from deprivations of its interest in life by the pregnant woman. In this article, we suggest that Canadian constitutional law scholars and reproductive rights advocates would benefit from examining the German abortion decisions despite their highly controversial nature. In our view, the benefits ra e twofold. First, the German cases demonstrate that recognizing the protective function can help clarify constitutional doctrine by revealing the tensions that underlie many difficult constitutional cases. Second, a synthetic reading of the German and Canadian Courts’ abortion jurisprudence generates a more fulsome and nuanced analysis of the issues raised in the those cases, as well as additional critical commentary on the Courts’ analyses and conclusions. Keywords Abortion; Germany; Canada; Fetus--Legal status; laws; etc. This special issue article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol50/iss4/9 999 The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law VANESSA MACDONNELL & JULA HUGHES * In the First and Second Abortion decisions, the German Constitutional Court drew on earlier jurisprudence to hold that the state was under a constitutional duty to protect the fetus from deprivations of its interest in life by the pregnant woman. In this article, we suggest that Ca- nadian constitutional law scholars and reproductive rights advocates would benefit from examining the German abortion decisions despite their highly controversial nature. In our view, the benefits are twofold. First, the German cases demonstrate that recognizing the protective function can help clarify constitutional doctrine by revealing the tensions that underlie many difficult constitutional cases. Second, a synthetic reading of the German and Canadian Courts’ abortion jurisprudence generates a more fulsome and nuanced analysis of the issues raised in the those cases, as well as additional critical commentary on the Courts’ analyses and conclusions. Dans ses deux premiers jugements sur l’avortement, la Cour constitutionnelle allemande, se fondant sur une jurisprudence reconnaissant l’obligation pour l’État de protéger d’intervention privée les droits constitutionnels d’une personne, a fait valoir que l’État avait le devoir constitutionnel de protéger le fœtus d’une dépossession de son droit à la vie par la femme enceinte. Dans cet article, nous suggérons que les constitutionnalistes et les défenseurs des droits en matière de reproduction canadiens auraient intérêt à étudier, les jugements allemands sur l’avortement malgré leur nature fortement controversée. Nous faisons valoir que cela représente un double avantage. En premier lieu, la comparaison avec l’Allemagne démontre que la reconnaissance de la fonction de protection peut clarifier la doctrine * Vanessa MacDonnell, Assistant Professor, University of Ottawa Faculty of Law (Common Law Section). Jula Hughes, Associate Professor, University of New Brunswick Faculty of Law. The authors wish to thank the anonymous reviewers for their useful comments and suggestions, Jena McGill for sources, and Colin Heighton and James Strickland for their research assistance. Vanessa would like to thank Frank Michelman for his many insights in supervising her earlier work in this area as a graduate student. 1000 (2013) 50 OSGOODE HALL LAW JOURNAL constitutionnelle en dévoilant les tensions qui caractérisent de nombreux cas constitutionnels de nature complexe. En second lieu, une lecture synthétique des jurisprudences allemande et canadienne sur l’avortement permet d’obtenir une analyse plus exhaustive et nuancée des enjeux que soulèvent les cas d’avortement dans chacun de ces pays et de formuler de nou- veaux commentaires critiques sur l’analyse et les conclusions des tribunaux. I. THE FIRST AND SECOND ABORTION DECISIONS.......................................................................... 1006 A. The First Abortion Decision .............................................................................................. 1007 B. Reaction and Response .................................................................................................... 1012 C. The Second Abortion Decision ......................................................................................... 1014 II. A CANADIAN PROTECTIVE FUNCTION? ......................................................................................... 1022 A. The Protective Function and Section 1 ............................................................................. 1032 B. Deference and Judicial Activism ...................................................................................... 1033 III. A SYNTHETIC READING OF THE ABORTION DECISIONS ............................................................... 1037 A. What is the Scope of the Right of a Woman to Determine Whether to Carry a Pregnancy to Term? ................................................................................................................................ 1042 B. What is the Scope of Permissible Abortion Regulation Aimed at Protecting Fetal Life? ..... 1045 C. How Do We Constitutionally Reconcile These Rights and Obligations? .......................... 1049 IV. CONCLUSION .................................................................................................................................. 1050 IN 1975 AND 1992, THE GERMAN CONSTITUTIONAL COURT (Bundesverfassungs- gericht) heard successive challenges to the decriminalization of abortion by the German Federal Parliament (Bundestag). In the highly controversial First1 and Second2 Abortion decisions, the Court held that the state had a constitutional obligation to protect the fetus3 from deprivations of its interest in life by the 1. Schwangerschaftsabbruch I, (1975) 39 BVerfGE 1 (Fed Const Ct) (Germany) [First Abortion decision] [translated by author, Jula Hughes]. There is no official English translation of this decision. We have relied exclusively on the original German text for our analysis. The Supreme Court of Canada has relied on a translation by Robert Jonas and John Gorby in one of its own decisions on the constitutionality of criminalizing abortion. See Robert E Jonas and John D Gorby, “West German Abortion Decision: A Contrast to Roe v. Wade” (1976) 9:3 J Marshall J Prac & Proc 605, cited in R v Morgentaler, [1988] 1 SCR 30 at para 2, DLR (4th) 385 [Morgentaler]. 2. Schwangerschaftsabbruch II, (1993) 88 BverfGE 203 (Fed Const Ct) (Germany) [Second Abortion decision]. An official English translation is available on the website of the German Constitutional Court. See BVerfGE, 2 BvF 2/90 (28 May 1993), online: <http://www. bverfg.de/entscheidungen/fs19930528_2bvf000290en.html>. 3. Following the Supreme Court of Canada in Morgentaler (supra note 1), we use the terms “fetus” and “fetal life” throughout, recognizing that they are inaccurate when applied to the first ten weeks of pregnancy following the last menstrual period. The German Constitutional Court uses the term nasciturus, which might be better translated as prenatal life. See e.g. First Abortion decision, supra note 1 at para 119. MACDONNELL & HUGHES, GERMAN ABORTION DECISIONS 1001 pregnant woman.4 In doing so, the Court also recognized a broader right to have constitutional interests secured by the state against intrusions by private actors.5 It held that where a power imbalance between private actors renders constitutional interests vulnerable to deprivation, the state is required to intervene to protect the interests of the weaker party.6 In both decisions, the Court was unanimously of the view that the objective nor- mative framework of the constitution required the state to protect the fetal interest in life. In the First Abortion decision, the majority concluded that the state could only fulfill this obligation using the criminal law. The dissenters rejected the majority’s approach, explaining that the criminal law was an unnecessary and inappropriate tool for regulating abortion. In the Second Abortion decision, a majority of the Court resiled from the position of the earlier majority on the necessity of criminalization, and concluded that the state might validly protect fetal life in a range of ways. In reaching this conclusion, the Court adopted aspects of the dissenters’
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