## Facts

- Germany historically criminalized abortion under Penal Code § 218, with limited medical exceptions.
- In 1974, the legislature enacted a reform creating § 218a, adopting a time-limit model under which abortions within the first 12 weeks were generally not punishable if preceded by counseling and performed by a physician.
- Members of the federal parliament and several state governments filed abstract constitutional review challenges, arguing the reform violated constitutional protection for unborn life grounded in human dignity and the right to life.
- The Federal Constitutional Court heard the consolidated challenges and reviewed whether the reform satisfied the state’s constitutional duties.

## Issues

1. Whether unborn life is a constitutionally protected legal interest under the Basic Law’s human dignity and right-to-life provisions.
2. Whether the Basic Law imposes a positive state duty to protect unborn life, including against threats arising from the pregnant woman’s decision.
3. Whether a first-trimester time-limit regime with counseling, largely exempting abortion from punishment, adequately fulfills that duty or whether abortion must remain generally unlawful subject to narrow exceptions.

## Decision

- The Court held that developing life in the womb is an independent legal interest protected by the Basic Law, particularly in conjunction with human dignity and the right to life.
- The Court held the state has an affirmative duty to protect unborn life, including protection against private interference, and that this duty applies even with respect to the pregnant woman.
- The Court concluded that, as a general rule, protection of fetal life takes priority throughout pregnancy over the pregnant woman’s self-determination, subject to exceptional circumstances.
- The Court declared the 1974 time-limit provision (§ 218a) unconstitutional because it did not sufficiently implement effective protection of prenatal life.
- The Court required a framework in which abortion remains generally unlawful, with non-punishability or permissibility limited to defined indications (e.g., serious risks to the woman’s life or severe health impairment, and other extraordinary burdens of comparable gravity).

## Legal Principles

- Unborn life is constitutionally protected as an independent legal interest, linked to the right to life and human dignity under the Basic Law.
- Fundamental rights can impose protective duties on the state, requiring affirmative measures that provide effective, real-world protection commensurate with the importance of the protected interest.
- The state’s duty to protect unborn life extends to protection against private actions, including decisions by the pregnant woman.
- The legislature may use measures other than criminal punishment to express legal disapproval and provide protection, but the overall scheme must ensure effective protection; if alternative measures are inadequate, criminal prohibition may be constitutionally required.
- Abortion may be exempted from punishment or permitted in narrowly defined cases where continuation of pregnancy cannot reasonably be required, especially to avert danger to the woman’s life or severe impairment of her health, and potentially other exceptional burdens of similar gravity.

## Conclusion

The Court invalidated Germany’s first-trimester time-limit abortion regime, holding that the Basic Law protects unborn life and obligates the state to provide an effective protection system that treats abortion as generally unlawful while allowing narrow, indication-based exceptions for extraordinary hardship.


German Abortion I (Schwangerschaftsabbruch I), 39 BVerfGE 1 (Ger. Fed. Const. Ct. 1975)