‘A comparative analysis of abortion regulation reveals widely divergent approaches across different
Within the United States of America (‘U.S.’) and Germany, the regulation of abortion must adhere to their respective ‘constitutional values.’1 As such, the U.S. Supreme Court (‘SC’) and the German Federal Constitutional Court (‘FCC’), as the guardians of these values, have created frameworks in which abortion laws operate. Part I of this essay argues that the U.S. and German approaches to abortion regulation – as determined by their constitutional frameworks – are ‘dramatically divergent.’2 Whilst liberty is the lodestar of U.S. abortion regulation, that of Germany is dignity. Despite academic contestation, this divergence remains in the different constitutional protection given to the unborn and the juxtaposing legal status of abortion. Part II explores the reasons behind the creation of these governing constitutional frameworks and concludes that the divergent prioritisation of values is to be expected since both the U.S. and Germany conform to their particular political history, ideology and social context.
Abortion Regulation: Diverging Priority of Constitutional Values
The weight given to certain constitutional values within abortion regulation diverges; whilst the U.S. prioritises liberty, Germany gives precedence to dignity. In Roe v Wade,3 the SC held that the procurement of an abortion was a constitutionally protected privacy.4 To this end, the SC created a trimester framework whereby the state was unable to proscribe abortion until the final trimester. This, Kommers argues, ‘chiselled’5 into U.S. abortion regulation a ‘near absolute’ right to personal liberty. By contrast, in Abortion I6 the FCC declared that ‘abortion is an act of killing’7 which must be prevented in light of the ‘ultimate’ constitutional value of dignity.8 Clearly, the approaches of the U.S. and Germany were ‘diametrically opposed.’9 Yet, this divergence is hardly surprising given that the Fourteenth Amendment of the U.S. Constitution explicitly protects liberty,10 whilst Article 1 of the German Basic Law provides that human dignity is ‘inviolable.’11
This notwithstanding, many commentators argue that the current approaches of the U.S. and Germany ‘tilt’12 or ‘converge’13 towards one another. This is certainly supported to the extent that the updated constitutional frameworks of both polities now attempt to achieve a ‘workable balance’14 between liberty and dignity.15 For example, in Planned Parenthood of Southeastern Pennsylvania v Casey,16 the SC rejected Roe’s trimester framework and held that states are free to adopt measures in the ‘profound interest’ of protecting ‘potential life.’17 Additionally, in Abortion II18 the FCC took a ‘middle course’19 by considering a woman’s liberty and permitting abortion once counselling had been completed.20
Nevertheless, the argument that this has resulted in a converged approach towards abortion regulation is misplaced. Both Casey and Abortion II sustain the ‘essential holdings’21 of the constitutional frameworks created in Roe and Abortion I. In doing so, a divergence in approach remains in two main ways; through the different constitutional protection of the unborn, and the contrasting legal status of abortion. First, in Casey, the SC failed to reject Roe’s contention that the unborn foetus falls outside the realm of constitutional protection22 and instead held that a woman’s right to procure an abortion remains a constitutionally protected liberty.23 By contrast, in Abortion II the FCC held that in light of the ‘overarching and integrating constitutional value’24 of dignity, the word ‘everyone’ in the Constitution includes unborn human beings.25 Thus, while in the U.S. a woman’s liberty continues to acquire constitutional superiority, in Germany, unborn life demands equal protection of its dignity. Second, in Casey the SC affirmed that liberty requires the legality of abortion, while in Abortion II, the FCC emphasised that dignity necessitates the illegality of abortion.26 It is this second line of reasoning which academics27 argue is arbitrary since the legal status within both polities is not absolute. Indeed, in the U.S. a state still has the power to regulate abortion, and in Germany abortion may be decriminalised and permitted.28
However, this contention is easily rebutted since the U.S.’s limitation is more easily overcome than the German exception is proven. In the U.S., although a state can regulate abortion, it must not create an ‘undue burden.’29 In Whole Woman’s Health v Hellerstedt30 the SC liberally applied this test and struck down Texan ‘admitting-privileges’ and ‘surgical-center’ requirements as unconstitutional.31 Interestingly, a substantial factor in determining this decision was that women were less likely to receive ‘individualised attention.’32 Not only does this case illustrate the liberal ‘tendency’33 of the SC to quash perceived restrictive abortion regulations, but also that a woman’s individual liberty remains the priority.34 In Germany, by contrast, a woman is not so easily ‘exempt’35 from the illegality of abortion; rather there must be ‘grave calamity’36 or more than ‘exactable self-sacrifice.’37 To illustrate such hardship and avoid prosecution, a woman must have counselling, take a three-day waiting period, and then obtain a certificate. This proves particularly difficult given that the state’s duty to protect dignity means that it cannot subsidise the required counselling.38 Consequently, while the aforementioned critics are correct in highlighting that the U.S. and Germany have altered their approaches, they underappreciate the practical realities created by the differing constitutional protection of the unborn and the juxtaposing legal status of abortion.39 In this way, a divergence remains.
Constitutional Frameworks: Political History, Ideology and Social Context
This divergence in approach is expected as the governing constitutional frameworks reflect the ‘original intent’40 of the constitutional creators and political history of the polities.41 As such, whilst the U.S.’s distrust of the government explains the prioritisation of liberty, Germany’s condemnation of Nazism supports the precedence given to dignity. The framers of the U.S. Constitution believed that the ‘self-interest’ of individuals within government would cause a tyranny of the majority.42 This suspicion engendered a constitution based on ‘Madisonian liberalism’43 which protected the subjective rights44 of individuals by precluding ‘unwarranted governmental intrusion.’45 This was stressed in Casey where the SC held that abortion is a ‘realm of personal liberty which the government may not enter.’46
The architects of the German Basic Law were similarly concerned with the prevention of a ‘totalitarian’ regime.47 However, rather than prioritising liberty, they created a ‘value-orientated’48 constitution which placed dignity at the apex of the legal order.49 This hierarchical legal order creates subjective rights, akin to the U.S., preventing unwarranted state interference. However, unlike the U.S., each right is also informed by an objective value50 which the state is obligated to protect.51 Subsequently, in Abortion I and Abortion II, the FCC had ‘no choice’52 but to declare that the state has a ‘comprehensive duty’53 to protect dignity. This is understandable in light of the ‘historical experience’ of Nazism and its disregard for human life.54 Yet, Germany’s use of dignity to empower the state certainly opposes the U.S.’s commitment to liberty as a means of rejecting imperious state interference.55
In addition to political history, the constitutional frameworks reflect the juxtaposing ideologies or ‘legal cultures’56 present within the U.S. and Germany. Whilst the U.S.’s framework of ‘individualism’57 is premised on liberty, Germany’s ‘communitarianism’58 is founded on dignity. However, as Werner highlights, it must be emphasised that the U.S. is not entirely individualist59, nor is Germany wholly communitarian.60 For example, in the U.S., the SC has referred to the ‘state’s interest’61 and society’s ‘moral concerns.’62 Likewise, in Germany, the FCC has considered a woman’s ‘right to personality’63 and ‘personal freedom.’64 However, one may criticise Werner for over-emphasising such cross-fertilisation, since individualism is still the main ideology within the U.S., and communitarianism within Germany.
Individualism remains the ‘core’65 ideology of the U.S. and suggests that personal liberty is the ‘most important virtue.’66 As such, in the U.S., a woman seeking an abortion is ‘sovereign,’67 ‘autonomous,’68 and ‘isolated’69 from society. For example, in Roe, Justice Blackmun claimed a woman’s liberty could not be easily ‘overridden’ by countervailing state interests.70 Furthermore, in Casey, it was held that the state could not ‘insist’ on its ‘own vision’ of abortion, but rather a woman must shape her own ‘destiny.’71 This constitutional framework based on liberty, ‘personal freedom’72 and ‘choice maximisation’73 can thus be understood given the U.S.’s commitment to individualism.
In stark contrast to this, in Germany, a pregnant woman is not autonomous, but rather bound by communal considerations. For example, in Abortion I, the FCC highlighted that abortion involves ‘elementary values of community life’74 and has ‘a social dimension’ necessitating state involvement.75 The positive obligation on the state to protect dignity plays an ‘integrative role’76 in linking the individual to both the community77 and social justice.78 Arguably this approach is predictable given that Article 20(1) of the Basic Law provides that Germany is a ‘social federal state.’79 Regardless, Germany’s ‘social contractualist’80 approach to abortion regulation, which considers dignity an ‘inviolable’ promise to the community, reflects Germany’s ‘communitarian’81 approach. Consequently, the U.S.’s individualist ideology has resulted in a protection of liberty in abortion regulation, whereas Germany’s communitarian ideology gives precedence to dignity.82
Lastly, a divergence appears in the way that the U.S.’s constitutional framework is influenced by social context, whilst that of Germany’s remains unaffected by other constitutional actors. In the U.S., feminist commitments are ‘vindicated’83 in the pro-liberty constitutional framework. For example, throughout the 1970s, feminists demanded changes to abortion based on ‘women emancipation’84 and thus, in Roe, the SC ‘fashioned’85 a ‘policy of abortion on demand.’86 Likewise, the ‘third wave’ of feminism in the 1990s accounts for the liberal application of the undue-burden test in Casey.87 In the Twenty-First Century, with an increased emphasis on female liberty88, cases like Hellerstedt can similarly be understood as favourably ‘constitutionali[s]ing’89 abortion in light of social compromise. Indeed, Justice Alito90 argues that the SC continues to approach the ‘controversial issue’ of abortion without the ‘neutrality’ it deserves, while Justice Thomas claims the SC is reducing constitutional law to ‘policy-driven value judgments.’91 Though Siegel is therefore correct in identifying the way ‘social conflict’92 shapes the U.S.’s constitutional framework, it reveals a troubling tension between constitutionalism and democracy. In enacting policy-driven judgments, the SC is ‘usurping’ democratic legitimacy and finds itself judicially legislating.93
Kommers argues that in Germany, unlike the U.S., abortion regulation is a matter ‘committed to the legislature’ and merely controlled by the constitutional value of dignity.94 As such, any influence of social context is firmly disregarded by the FCC. In Abortion I the FCC warned that regulation cannot ‘acquiesce’ to public beliefs.95 Moreover, in Abortion II the FCC categorically rejected that religious commitments have affected the constitutional framework by stating that abortion regulation ‘emanates’ from dignity, the validity of which is ‘independent’ of any religious belief.96 Arguably, this rejection is superficial since the FCC’s insistence on dignity in relation to the past practices of Nazism is reflected in present-day religious movements.97 For example, the ‘Never Again’ initiative has equated abortion with the holocaust massacre98 and the Archbishop of Cologne compared abortion to the extermination exacted by Hitler.99 However, these extreme comments are entirely unsupported by the majority of Germans and thus extremely unlikely to have influenced, or continue to influence, the FCC.100 As such, Kommers’ contention that the FCC is ‘less sociological’101 than the SC proves true, and any ‘political polemics’ against the FCC are simply ‘unfounded.’102 Clearly, whilst social context is relevant in the U.S. and accounts for the emphasis on liberty, in Germany, it is more probable that its political history and particular ideology accounts for the FCC’s commitment to dignity.
The U.S. and Germany demonstrate widely divergent approaches to abortion regulation. In the U.S., liberty is the supreme value, resulting in the exclusion of the unborn from constitutional protection and the legality of abortion. Germany’s commitment to dignity, however, has led to extending constitutional protection to the unborn and the illegality of abortion. This divergence is to be expected given that the constitutional frameworks dictating the U.S. and German approaches conform to their respective contexts. In the U.S., a distrust of government, individualism and influence of social movements account for the prioritisation of liberty. In Germany, by contrast, the past practices of Nazism, communitarianism and abstinence from social influence explain the FCC’s insistence on dignity. Whether this divergence will continue in the future, however, remains to be seen.
Statutes and Statutory instruments
Constitution of the United States of America, 1787
German Basic Law, 1949
Griswold v Connecticut 381 US 470 (1965)
Eisenstadt v Baird 405 US 438 (1972)
Roe v Wade 410 US 113 (1973)
Moore v City of East Cleveland 431 US 494 (1977)
Planned parenthood of south-eastern Pennsylvania v Casey 505 US 833 (1992)
Stenberg v. Carhart 530 US 914 (2000)
Gonzales v Carhart 550 US 124 (2007)
Whole Woman’s Health v Hellerstedt 579 US __ (2016)
BVerfGE 39, 1 (1975), Abortion I translated by R. E. Jonas and J. D. Gorby, Translation of the German Federal Constitutional Court Decisions, in The John Marshall Journal of Practice and Procedure (Vol. 9: 605), at: http://groups.csail.mit.edu/mac/users/rauch/germandecision/german_abortion_decision2.html
BVerfGE 88, 203 (1993), Abortion I translated at http://www.bverfg.de/entscheidungen/fs19930528_2bvf000290en.html
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1Reva Siegel, ‘The Constitutionalization of Abortion’ in Michel Rosenfeld and Andras Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012), 1071.
2ibid 1057; Patrick Glenn, ‘The Constitutional Validity of Abortion Legislation: A Comparative Note’ (1975) 21 McGill Law Journal, 673.
3Roe v Wade 410 US 113 (1973) (Wade).
5Donald Kommers, ‘Autonomy, Dignity and Abortion’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011), 446-7.
6BVerfGE 39, 1 (1975), Abortion I translated by R E Jonas and J D Gorby’s ‘Translation of the German Federal Constitutional Court Decisions’, in The John Marshall Journal of Practice and Procedure, Vol. 9, (1976), at http://groups.csail.mit.edu/mac/users/rauch/germandecision/german_abortion_decision2.html (accessed 17 December 2018).
9Udo Werner, ‘The Convergence of Abortion Regulation in Germany and the United States: A critique to Glendon’s Rights Talk thesis’ (1996) 18 Loyola of Los Angeles International and Comparative Law Review 571, 571; Donald Kommers, ‘The Constitutional Law of Abortion in Germany: Should Americans Pay Attention’ (1994) 10 Journal of Contemporary Health Law and Policy, 2.
10Constitution of the United States of America, XIV Amendment
11German Basic Law 1949, Article 1(1).
12Kommers (n5) 454.
13ibid 454, 455; Siegel (n1) 1058, 1071; Werner (n9) 572.
14Kommers (n5) 455.
15Donald Kommers, ‘Liberty and Community in Constitutional Law: The Abortion Cases in Comparative Perspective’ (1985) Brigham Young University Law Review 371, 373.
16Planned Parenthood v Casey 505 US 833 (1992) (Casey).
18BVerfGE 88, 203 (1993), Abortion II, translated at: https://germanlawarchive.iuscomp.org/?p=1190 (accessed 17 December 2018).
19Albin Eser, ‘Abortion Law Reform in Germany in International Comparative Perspective’ (1994) 1(1) European Journal of Health Law, 19-20.
20Abortion II (n18); Siegel (n1) 1071.
21Casey (n16) 880; Werner (n9) 598.
22Wade (n3) 157-9.
23Casey (n16) 873; Glenn (n2) 676; Donald Kommers, ‘Abortion and Constitution: United States and West Germany’ (1977) 25 American Journal of Comparative Law 255, 265.
24Paolo Carozza, ‘Human Dignity in constitutional adjudication’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar 2011), 466; Matthias Mahlmann, ‘The Basic Law at 60 – Human Dignity and the Culture of Republicanism’ (2010) 11(1) German Law Journal, 9-32.
25Abortion I (n6); Abortion II (n18); Karen Crabbs, ‘The German Abortion Debate: Stumbling Block to Unity’ (1991) 6(2) Florida Journal of International Law, 219.
26Abortion II (n18); Kommers (n5) 450-1; Eser (n19) 30; Werner (n9) 600.
27Kommers (n5) 454, 455; Siegel (n1) 1058, 1071; Werner (n9) 572, 598-99, 601; Richard Levy, Alexander Somek, ‘Paradoxical Parallels in the American and German Abortion Decisions’ (2001) 9 Tulane Journal of International and Comparative Law, 141.
28Kommers (n15) 396.
29Casey (n16) 874; Kommers (n5) 447.
30Whole Woman's Health v Hellerstedt 579 US __ (2016) (Hellerstedt).
32ibid 26, 32, 36.
33Dissenting opinion of Justice Thomas, Hellerstedt (n30) 1; Stenberg v Carhart 530 U S 914 (2000), 954.
34Wade (n3) 159; Werner (n9) 577.
35Abortion II (n18).
36Abortion I (n6); Gerald Neuman, ‘Casey in the Mirror: Abortion, Abuse and the Right to Protection in the United States and Germany’ (1995) 43 American Journal of Comparative Law, 289.
37Abortion II (n18); ibid 280.
38Abortion II (n18).
39Levy and Somek (n27) 157.
40Anita Allen, ‘Autonomy’s Magic Wand: Abortion and Constitutional Interpretation’ (1992) 72 Boston University Law Review, 692-3.
41Vicki Jackson, ‘Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse’ (2004) 65 Montana Law Review, 27; Siegel (n1) 1071-2; Mary Ann Glendon, Abortion and Divorce in Western Law (Harvard University Press, 1987) 8; Douglas Morris, ‘Abortion and Liberalism: A Comparison between the Abortion Decisions of the Supreme Court of the United States and the Constitutional Court of West Germany’ (1988) 11 Hastings International and Comparative Law Review, 208.
42Yale Law School, ‘Federalist No 10,’ (Avalon Project) <http://avalon.law.yale.edu/18th_century/fed10.asp> accessed 05 January 2019; Jack Rakove, ‘The Madisonian Moment’ (1988) 55(2) University of Chicago Law Review, 476.
43Kommers (n23) 282.