## Facts

- National legislation created a unified abortion framework after reunification, replacing prior regional approaches that differed on first-trimester access.
- The new regime kept abortion generally criminalized after 12 weeks, but provided that a first-trimester abortion would not be treated as unlawful if the pregnant woman completed mandatory counseling at least three days before the procedure and a physician performed it.
- Members of the national legislature and several regional governments initiated an abstract constitutional review challenging the statute’s compatibility with constitutional duties to protect unborn life.
- The challenge targeted the counseling-based nonpunishment model and related rules addressing criminal-law classification, counseling design, and public financing through social-insurance mechanisms.

## Issues

1. Whether the abortion framework satisfied the constitutionally required duty to protect unborn human life grounded in human dignity and the right to life.
2. Whether the legislature could substitute a counseling-based nonpunishment model for an indications-based model in early pregnancy without abandoning a fundamental legal prohibition and the legal characterization of abortion as unlawful.
3. Whether provisions treating abortion as a routine health service, including cost-coverage rules, were inconsistent with the constitutional protection mandate.

## Decision

- The court upheld core constitutional premises that unborn life has an independent right to life and is protected by human dignity and the right to life, imposing a state duty to protect unborn life.
- The court held that abortion must be legally regarded as fundamentally wrong throughout pregnancy and must be subject to a fundamental legal prohibition.
- The court permitted a counseling-centered approach in early pregnancy only if the statute:
  - preserves the legal classification of the abortion as unlawful even when it remains unpunished after counseling, and
  - structures counseling and social support to encourage continuation of pregnancy and protect unborn life.
- The court invalidated or found incompatible those statutory provisions that failed to maintain the “unlawful” classification or that normalized abortion through social-law and financing rules inconsistent with the protection duty.
- The court allowed the legislature to revise the statute to conform to constitutional requirements, including retention of criminal law as part of an overall protection concept.

## Legal Principles

- The state has an affirmative constitutional obligation to protect human life, including unborn life, derived from human dignity and the right to life.
- Protection is owed to the individual unborn life and includes protection even against termination by the pregnant woman; the legislature must impose a basic legal duty to carry the pregnancy to term, subject to limited exceptions.
- The right to life of the unborn may not be left to an unbound private decision, even for a limited period.
- The extent of the protection duty is determined by balancing the unborn’s right to life against the pregnant woman’s constitutional interests, including dignity, life and bodily integrity, and personal development; broad first-trimester termination based solely on self-determination is not constitutionally sufficient.
- The constitution bars “too little protection”: the legislature must implement effective normative and practical measures combining preventive measures (counseling and support) and repressive measures (including criminal law as a residual instrument).
- A counseling model is constitutionally permissible only if it is protection-oriented, aims to persuade continuation of pregnancy, and does not reclassify early abortion as lawful; funding and social-law rules must not treat unlawful abortion as ordinary healthcare.

## Conclusion

The court required a statutory structure that legally prohibits abortion and classifies it as unlawful, while allowing a narrowly conditioned counseling-based nonpunishment model in early pregnancy, and it struck provisions that weakened the required protection of unborn life, including those that normalized abortion through legal classification or financing.


Second Abortion Decision (Ger.), Nos. 2 BvF 2/90, 2 BvF 5/92 (Fed. Const. Ct. 1993)