Notre Dame Law School NDLScholarship Journal Articles Publications 1994 The onsC titutional Law of Abortion in Germany: Should Americans Pay Attention? Donald P. Kommers Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, and the Health Law and Policy Commons Recommended Citation Donald P. Kommers, The Constitutional Law of Abortion in Germany: Should Americans Pay Attention?, 10 J. Contemp. Health L. & Pol'y 1 (1994). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/733 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. ARTICLES THE CONSTITUTIONAL LAW OF ABORTION IN GERMANY: SHOULD AMERICANS PAY ATTENTION?* Donald P. Kommers** What I plan to do here is to tell you the story of Germany's legal ap- proach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal re- strictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitu- tional decisionmaking, revealing as much about the values of the two so- cieties as about the role of judicial review in a constitutional democracy. The two stories unfold in the decisions, respectively, of the U.S. Supreme Court and Germany's Federal Constitutional Court. Before telling my story, however, I want to say a few words about com- parative constitutional analysis, the kind of analysis I am about to embark upon. The purpose of this article is not so much to find the right answer to a constitutional problem, but rather to understand and distinguish the competing conceptions of freedom and responsibility that undergird the * This article has been adapted from the 1993 Brendan F. Brown Lecture. ** Joseph and Elizabeth Robbie Professor of Government and International Studies and Professor of Law, University of Notre Dame. B.A., The Catholic University of America, M.A., University of Wisconsin (Madison), Ph.D., University of Wisconsin (Madison). I want to thank the following persons for their helpful comments on an earlier draft of this paper: David W. Beatty, David P. Currie, Susan Dwyer-Schick, John H. Garvey, Mary Ann Glendon, Stanley N. Katz, Walter F. Murphy, Gerald L. Neuman, Mathias Reimann, John H. Robinson, Robert E. Rodes, Jr., Herman Schwartz, Thomas L. Shaffer, Thomas W. Simon, Helmut Steinberger, Richard T. Stith, Mark V. Tushnet, and Theodore M. Ves- tal. This article has benefitted enormously from their criticisms and suggestions. I am particularly indebted to Winfried Brugger, Professor of Law in Heidelberg University, for taking the time to comment on the final and longer version of the manuscript. 2 Journal of Contemporary Health Law and Policy [Vol. 10:1 abortion cases in the two countries. What makes comparison in this in- stance so engaging is that two occidental, post-industrial, secular socie- ties, presumably committed to liberty and justice for all, have embraced, at least temporarily radically different constitutional positions on abor- tion. More interesting still is that these divergent outcomes proceed from humane values and constitutional principles common to, both societies. The two stories are also contemporaneous. In 1973, the United States Supreme Court struck down state laws interfering with a woman's right to secure an abortion within the first and second trimesters of pregnancy.1 TWo years later, in 1975, Germany's Constitutional Court struck down an abortion statute that sought to guarantee precisely the fundamental right that the Supreme Court somehow managed to discover.2 Both decisions were extraordinary assertions of judicial power. In fact, Justice White's dissenting opinion in Doe v. Bolton, deploring what he called "an exercise of raw judicial power,"3 found anequally strong echo in the German dis- sents. As the German dissenters stated in 1975: "The-Federal Constitu- tional Court must not succumb to the temptation to take over for itself the [function of legislation and thus to] endanger the authority [of this Court]."4 Despite these opinions and the commotion they created, both courts, some twenty years later - the Supreme Court in 1992 and the Constitutional Court in 1993 - preserved the essential core of each of their original decisions.' Before turning to Germany, I would like to say more about the value of comparative constitutional analysis. Along with the English compara- tivist, Basil S. Markesinis, I believe that foreign case law - here constitu- tional case law - is an important resource in the study of comparative law.6 Cases deal with concrete problems of liberty and order in a consti- tutional democracy. Combining, as they often do, comedy and error with tragedy and pathos, cases form the living skein of law. For Americans, foreign constitutional cases are particularly important because they be- 1. Roe v. Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973). 2. Judgment of February 25, 1975, 39 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1 (First Senate) (F.R.G.). For a complete translation of the 1975 German Abortion Case, see Robert E. Jonas & John D. Gorby, West German Abortion Decision:A Contrast to Roe v. Wade, 9 J. MARSHALL J. PRAC. & PROC. 551, 605-84 (1976). 3. Doe v. Bolton, 410 U.S. at 222 (White, J., dissenting). 4. 39 BVerfGE at 70. Unless otherwise indicated, all translations from this decision, the abortion decision of 1993, and other official documents are those of the author. 5. See, respectively, Planned Parenthood of Southeastern Pa. v. Casey, 112 S. Ct. 2791 (1992); Judgment of May 28, 1993, 88 BVerfGE 203 (Second Senate). 6. Basil S. Markesinis, Comparative Law - A Subject in Search of an Audience, 53 MOD. L. REV. 1 (1990). 19941 Abortion and the German Constitution long to the literature of responsible freedom and limited government, a literature that is both challenging and enlightening: challenging because it forces Americans to confront cherished assumptions about themselves as a people and the deeper meaning of their public values; enlightening be- cause the opinions and insights of foreign case law uncover truths about our own constitutional tradition that we may have only dimly perceived in the past.7 Constitutional cases also invite our attention because, by comparing cases handed down by different nations with constitutional tribunals simi- lar to the United States Supreme Court, we can illuminate the process of constitutional interpretation. In deciding cases, judges are called upon to interpret a foundational text' and, in doing so, to draw a delicate line between the poles of judicial supremacy and legislative majoritarianism. American legal scholars currently tearing each other apart over ap- proaches to judicial review and losing sleep at night agonizing over the countermajoritarian difficulty may find more satisfying models of judicial decisionmaking in other constitutional democracies. Finally, through cases we can bring courts into conversation with one another, thereby furnishing us with a window of understanding into the spirit of argument about political foundations and the varying dimensions of freedom that comport with liberal democracy. The office of comparative jurisprudence is not simply to compare constitutional doctrines. Doctrinal description is not, in my view, the heart of the comparative enterprise. Benjamin Car- dozo's perspective is on the mark. What is important in understanding judge-made law, he noted, is the "philosophy" behind doctrine that "give[s] direction to thought and action."9 What gives direction to thought and action in other societies like our own may move us to iden- tify more clearly the ethos that drives our law. The comparative enter- prise may not lead us to a new Jerusalem, nor is it likely to identify any ideal relationship between the values of liberty and community, but it may open our eyes to things we take for granted and encourage us to reflect critically on those things. In sum, comparative constitutional analysis is an instrument sharp enough to remove the scales of parochialism from our eyes. It helps us to 7. See generally Donald P. Kommers, The Value of Comparative ConstitutionalLaw, 9 J. MARSHALL J. PRAC. & PROC. 685 (1976). 8. Germany's foundational text is known as the Basic Law (Grundgesetz) of 23 May 1949 [hereinafter GGI. The terms "basic law" and "constitution" are used interchangeably in this article. 9. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 12 (1921). 4 Journal of Contemporary Health Law and Policy [Vol. 10:1 see the strengths and weaknesses of a given country's legal ideology and to identify neglected issues and otherwise ignored questions. Listening to the voices of foreign constitutional judges is one way of opening our minds to larger vistas of constitutional argument and insight than may be available in the corpus of a single nation's constitutional jurisprudence. It is possible that we Americans would feel more confident about our own constitutional values by drawing inspiration and knowledge from the work of foreign constitutional courts. I For my purposes, Germany's story begins with the Abortion Reform Act of 1974.10 Until then, the destruction of a human fetus was a punish- able offense under section 218 of the Criminal Code," except when a licensed physician aborted a fetus to remove a clear danger to the preg- nant woman's life or health. Decades of debate over the criminalization 2 and punishment of abortion formed the backdrop to the 1974 statute.' This statute's passage was one consequence of the 1972 national election which sent Willy Brandt into the Chancellor's office on the crest of the greatest victory of the Social Democratic Party (SDP) in the postwar era.