My final project before leaving Armenia was to research and write a report on Armenia’s human rights obligations vis-à-vis abortion. Sex-selective abortion is a notable problem in Armenia and as a “solution”, the government amended the relevant laws to restrict access to abortion generally.
When I moved to Germany, I was surprised to learn how restrictive the abortion law is. Below is a simplified version of the analysis that I did in the report for Armenia: I review Germany’s laws for compliance with Germany’s international human rights obligations. Naturally, this blog post won’t be as thorough as a report, and I encourage future blog posts to dive into the details that I will gloss over.
Germany’s Political Compromise
Below is a very brief description of Germany’s current abortion policy. The law as it exists is the result of many hours of parliamentary debate trying to unify the laws in West Germany and East Germany with requirements imposed by the Constitutional Court. The result is a law that tends to displease everyone.
Abortion is officially criminalized, yet in many cases there is no criminal liability. Pregnant women are able to have an abortion without liability if they obtain mandatory counseling, wait three days, and have the abortion within the first trimester (Criminal code § 218(1)). The counseling’s purpose is to “protect unborn life” and seeks “to encourage the woman to continue the pregnancy” (§ 219(1)). Due to the illegality of the procedure, health insurance does not pay for it, but the government will pay when women are not able to pay for themselves and in a few other listed circumstances (e.g. refugees). The pregnant woman is shielded from liability in all cases except when she conducts an abortion on herself (§ 218(3)). Finally, no abortion service provided for profit may be publicly advertised (§ 219a(1)).
European Law and Norms
Germany is a key player in regional institutions, making it important that Germany is complying with these institutions’ obligations and norms. As you’ll see in this section, official statements from European institutions often make the same balancing act on abortion as Germany’s domestic policy.
The European Court of Human Rights (ECHR) is the first institution that many look at for developing human rights norms. The ECHR is an important institution but has not been willing to make strong statements regarding abortion. Quoting from my report (page 9):
“The European Court of Human Rights has imposed few obligations on Member States regarding abortion. The Court has refused to find a general right to abortion (however, it also refused to find that the Convention’s right to life applies to fetuses). Generally, the Court is willing to give Member States a large margin of appreciation when assessing domestic abortion policy. The Court has been firmer with Member States when the States fail to implement a domestic right to abortion.” (internal citations removed)
The ECHR receives plenty of attention from European legal scholars, and it’s unlikely that Germany’s abortion policy grossly or generally violates the limited obligations the Court imposes on Member States.
While the ECHR is viewed as the body to develop human rights norms, it was meant to share that role with the European Committee of Social Rights. The ECHR tends to focus on civil and political rights, which is why the European Social Charter was developed to promote socioeconomic rights. Germany ratified the original 1965 version of the Charter but has not ratified the revised charter of 1999. Regardless, the text of Article 11 (The Right to Protection of Health) was effectively unchanged between the two versions, making it arguable that modern elaborations on Article 11 apply to Germany.
The Committee’s jurisprudence on abortion is sparse, but there is an important foundational case of International Planned Parenthood Federation – European Network (IPPF EN) v. Italy. In this decision on the merits from 2013, the Committee elaborated that (in para. 66)
“The right to protection of health guaranteed in Article 11 of the Charter thus complements the protection afforded to the principle of human dignity by Articles 2 and 3 of the European Convention on Human Rights as interpreted by the European Court of Human Rights. As part of the positive obligations that arise by virtue of this fundamental right, States must provide appropriate and timely health care on a non-discriminatory basis, including services relating to sexual and reproductive health.” (emphasis added)
Germany’s abortion policy is likely in compliance with this obligation. Considering the dearth of jurisprudence from the Committee, it is difficult to be precise, but we can review each bolded element above. Germany allows abortion to occur, subsidizes abortion counseling and pays for the abortion procedure for marginalized groups, almost certainly fulfilling its positive obligation to provide. It’s hard to argue that Germany’s 3-day delay would not qualify as timely. And, the abortion law doesn’t discriminate against certain groups of women. Thus, while the lack of rights-based approach to abortion policy may bother the Committee, it’s unlikely the Committee would find Germany’s system to be in facial violation.
The European Parliament (EP) of the European Union and the Parliamentary Assembly of the Council of Europe (PACE) have both promulgated resolutions regarding abortion. These resolutions are not directly binding but do develop the European norms regarding abortion. The EP promulgated its Report on Sexual and Reproductive Health and Rights (2013/2040(INI)). The report includes a motion for an EP resolution and an explanatory statement.
The resolution is a robust expression of human rights concerns regarding abortion. The motion expresses concern about barriers to accessing legal abortion, including explicitly stating that “medically unnecessary waiting periods and biased counselling” can be barriers to accessing abortion and that any counselling “must be confidential and non-judgmental” (in para. 34). The resolution recommends that access to abortion be “legal and safe” to avoid unsafe, clandestine abortions. PACE promulgated Resolution 1607 (2008), which is similar in purpose to the EP resolution but its points are not as articulated as much as the EP resolution, so I will skip an analysis for brevity’s sake.
Germany is not in compliance with the EP’s non-binding resolution. The EP’s resolution uses a rights-based approach that prioritizes access to safe abortion services to protect women’s health. It specifically rejects unnecessary waiting periods and biased counselling, two requirements that Germany imposes (I will be discussing these points in greater detail below). However, because the resolution is non-binding, Germany is not in violation of any legal obligation.
International Human Rights Law
While European institutions have not been too willing to promote human rights protections regarding abortion, international institutions have not been so hesitant.
The core legal protection for abortion is the right to health codified in the International Covenant of Economic, Social and Cultural Rights (ICESCR). Almost every nation in the world has ratified the ICESCR, including Germany. Article 12 of the ICESCR imposes a general legal obligation on States to realize each person’s highest attainable standard of health. This includes sexual and reproductive rights.
The Right to Health has been elaborated twice, in General Comment 14 and General Comment 22. General Comment 14 is a general elaboration of the right to health, while General Comment 22 is specifically about sexual and reproductive rights.
Combined, the two elaborate several obligations regarding reproductive rights for States. General Comment 14 imposes some positive obligations on States, including a non-discriminatory health system and “the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health” (in paras. 8 & 21, respectively) General Comment 22 provides both freedoms and entitlements. A relevant freedom is “the right to make free and responsible decisions … regarding matters concerning one’s body and sexual and reproductive health”, and a relevant entitlement is “unhindered access to a whole range of health facilities, goods and services” (in para. 5).
These different duties promote the idea that abortion is a medical procedure and arguably state that abortion cannot be treated differently than other medical procedures. This would make Germany’s exclusion of abortion from the universal healthcare system unacceptable. Discrimination generally refers to differentiating between people, not medical interventions, but disparate treatment of medical interventions results in different impacts on people. Excluding abortion from the health insurance system disproportionately burdens women. Germany’s willingness to pay for abortion for marginalized women means that there is no facial violation regarding a barrier to access but arguably there is one regarding discrimination.
One of the core aspects of the right to health is the right to access health information; one cannot make an informed choice without information. General Comment 22 elaborates that individuals “including adolescents and youth, have the right to evidence-based information on all aspects of sexual and reproductive health” (in para. 18). It’s questionable whether Germany’s approach of restricting public access to abortion information but providing information through counseling complies. It’s an empirical question whether individuals, especially women, are able to receive sufficient health information regarding abortion. The General Comment also lists the right to “disseminate information and ideas concerning sexual and reproductive health issues generally”, but a doctor’s right to disseminate is not as strong as an individual’s right to health information. Without further jurisprudence and information on the factual situation, I hesitate to say whether Germany is or is not in compliance.
The largest discrepancy between legal duties and the factual situation is the duty that States (in para. 41):
“repeal, and refrain from enacting, laws and policies that create barriers in access to sexual and reproductive health services. This includes … biased counseling and mandatory waiting periods for … access to abortion services.” (emphasis added)
This duty explicitly touches on two parts of Germany’s abortion law: biased counseling and mandatory waiting periods. Germany, like Russia, requires counselors to promote a particular message, i.e. to have a bias. This explicitly violates the duty quoted above. Furthermore, Germany requires a three-day waiting period not based on medical necessity, expressly violating the second element above.
A three-day waiting period is a more pernicious infringement on women’s rights than may seem present at first glance. By creating a mandatory waiting period, the implicit statement is that women cannot be trusted to make such an important decision. There is no mandatory waiting period before a dangerous medical procedure that may cost the patient their life because we trust the patient will carefully consider their actions. We don’t have the same trust for pregnant women. By not trusting her choices, we are undermining her autonomy and justifying paternalistic rights-violating policies.
Europe has not been an aggressive supporter of legal obligations on abortion. This conclusion is not surprising to anyone that pays attention to the politics of European countries. Just like in my home country of the US, abortion is a hot-button issue in Europe, making it unlikely that dispassionate legal analyses will sway minds in favor of good policy.
The international human rights community has been more assertive in promoting a rights-based approach to abortion. Germany’s non-rights-based approach becomes clearly visible by its different treatment of abortion and its inclusion of requirements, like biased counseling and mandatory waiting periods, that are not aimed at empowering pregnant women. From this admittedly cursory analysis, it appears that Germany is in facial violation of its legal obligations stemming from the right to health due to its mandatory waiting period, biased counseling and potentially from its disparate treatment of abortion and restriction of abortion information. However, considering that Germany lacks a domestic right to health and the high level of political contentiousness that surrounds abortion, it’s not likely that international enforcement mechanism will be able to change Germany’s policy regarding abortion.