by Stephanie Schlitt
The timing and content of the German government’s proposed way forward to address the use of Penal Code §219a to target physicians providing lawful abortion services has been roundly criticised for failing women and their health care providers.
In force since 1933, §219a is entitled “advertisement for termination of pregnancy” and criminalises those who offer abortion services “for material gain or in a grossly inappropriate manner”. In Germany, abortion is a crime, which is not punishable if undertaken after mandatory “conflict pregnancy counselling” and a three-day mandatory delay in the first twelve weeks of gestation and for specified indications at later stages. There is no general prohibition against physicians’ websites stating the services they provide.
- 219a has been in the public eye because a number of doctors have been sentenced or have criminal cases against them pending under this article for stating on their practice websites that they provide abortion services. Two abortion opponents are known to have denounced them: Klaus Günter Annen (told by the European Court of Human Rights in September 2018 that his rights were not violated by a court order to stop referring to abortions performed by doctors as “aggravated murder” and comparing abortions with the Holocaust) and a person who has denounced 60 to 70 doctors as a “hobby” and is suing those who identified him by name. The targeting of doctors came to public attention in late 2017 when general practitioner Kristina Hänel was sentenced under §219a to pay a fine of Euro 6000 for stating on her practice website that she provides abortion services. Dr Hänel is appealing this conviction, saying she will take her case to the European Court of Human Rights if necessary.
A parliamentary majority is thought to exist in favour of rescinding §219a. The German coalition government, however, is split on the issue, with the Social Democrats proposing and Christian Democrat and Social parties opposing scrapping §219a. Much delayed, in mid-December, the government announced its plans on §219a. The government proposes for:
- State or state-mandated bodies to provide “neutral, medically and legally quality-controlled information”
- A nationwide list of practices and clinics that perform abortions to be prepared and published by the German Medical Association and the Federal Centre for Health Education
- The crime “advertisement for abortion” under §219a to remain but be amended to allow doctors and hospitals to provide information about the fact that they are providing abortion services and to refer those who want more information to state sources
- A scientific study to be undertaken to “gain information about the frequency and extent of emotional sequelae of abortions”
In response to a parliamentary query, the government stated that it had no evidence that the criminal prohibition of information provision affects the number of abortions nor data from other countries where doctors who provide abortions are permitted to provide factual information to the general public.
Proponents of scrapping §219a criticise the proposal as reinforcing the stigmatisation of abortion, of women who opt to terminate a pregnancy and of doctors who provide abortion services. They say the proposed reform fails to address the actual challenges: Advertising by doctors is prohibited anyway. But doctors are criminalised for providing information on lawful health care options. Women cannot obtain information on those options up front and directly from providers but are forced to navigate a complex set of sources, which include the gory websites of abortion opponents. The law reinforces gender stereotypes of women as needing to be protected (from themselves) and views of abortion as an illegitimate choice and health care practice.
Arguments in favour of retaining §219a portray it as an integral element of the state’s protection of prenatal life as mandated by Constitutional Court judgments in the 1970s and 1990s – despite the fact that neither these judgments nor the most recent law reform after the German reunification substantially considered §219a. So, Annegret Kramp-Karrenbauer who succeeded Angela Merkel as general secretary of the Christian Democrat Party in December 2018 tweeted: “The protection of life, unborn and born, has an overriding significance for the CDU. It’s good that the ban on advertising remains.”
Meanwhile, reform proponents are considering whether the time is ripe to review and revise the overall regulation of abortion. For example, the Social Democrats’ youth organisation passed a resolution in favour of abortion being taken out of the Penal Code and Germany’s Pregnancy Conflict Law to be reformed to permit access to abortion services without a gestational limit, prompting the right-wing Alternative für Deutschland party to request a special parliamentary session.
An attempt by the opposition party FDP to force a vote on rescinding §219a in December failed. The government is due to put forward a concrete law reform proposal in January. Highlighting the urgency of legislative action, the judge in the case of two of the accused doctors postponed a hearing on their case pending “relevant legislative developments”.
 “Relaxed abortion legislation: Proposed German law comes under fire”, Deutsche Welle, 13 December 2018,
 Country Profile Germany, Global Abortion Policies Database, https://abortion-policies.srhr.org/country/germany/
 „Abtreibungsgegner über §219a: „Das ist halt so mein Hobby“, Taz, 10 April 2018,
http://www.taz.de/!5494752/. „Y***** H******** mahnt ab”, Taz, 14 November 2018,
 “German doctor fined for illegally ‘advertising’ abortions”, Deutsche Welle, 24 November 2017,
 “German parties to vote on ‘out of date’ Nazi-era abortion law”, The Guardian, 11 March 2018, https://www.theguardian.com/world/2018/mar/11/german-parties-to-vote-on-out-of-date-nazi-era-abortion-law
 “What you need to know about the abortion law battle that divides Germany”, The Local, 13 December 2018, https://www.thelocal.de/20181213/why-germanys-divisive-abortion-debate-is-back-in-the-spotlight
 Vorschlag der Bundesregierung zur Verbesserung der Information und Versorgung in Schwangerschaftskonfliktlagen (Federal government proposal on improving information and care in pregnancy conflict situation), http://docs.dpaq.de/14284-219a_erkla_rungend.pdf
 Deutscher Bundestag, Kleine Anfrage der FDP-Fraktion – Evaluation § 219a StGB, Drucksache 19/6934, 19 January 2019, http://dipbt.bundestag.de/extrakt/ba/WP19/2424/242454.html
 “Nur eine Streichung des Paragraphen 219a StGB schützt Ärzt*innen vor Kriminalisierung“; Pro Familia, 13 December 2018, https://www.profamilia.de/fileadmin/profamilia/pressemitteilungen/pm_pro_familia_lehnt_Regierungsvorschlag_zum___219a_ab_2018-12-13.pdf. „Vom Unwillen und Unvermögen eine Antwort auf eine einfache Frage zu finden”, Ulrike Busch and Daphne Hahn, 14 December 2018,
 “Abortion law brings first test for Merkel’s successor as CDU leader”, Irish Times, 13 December 2018,
 “Für ein Recht auf reproduktive Selbstbestimmung: Legalisierung von Schwangerschaftsabbrüchen“, Beschluss G1, Juso-Bundeskongress 30 November – 2 December 2018, https://www.bundestag.de/dokumente/textarchiv/2018/kw50-de-akt-std-paragraf-218/584144
 “Verhandlung gegen Frauenärztinnen abgesagt: Werbung für Abtreibung bald nicht mehr strafbar?“, Hessische/Niedersächsische Allgemeine, 10 January 2019, https://www.hna.de/kassel/paragraph-219a-abschaffen-prozesstermin-gegen-frauenaerztinnen-abgesagt-11111378.html