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‘A comparative analysis of abortion regulation reveals widely divergent approaches across different

INTRODUCTION

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.

PART I

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.

PART II

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.

CONCLUSION

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.

BIBLIOGRAPHY

Primary Sources

Statutes and Statutory instruments

USA

Constitution of the United States of America, 1787

Germany

German Basic Law, 1949

Cases

USA

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)

Germany

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

Secondary sources

Books

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Ehrmann H, Comparative Legal Cultures (Englewood Cliffs 1976)

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Jackson V and Tushnet M, Comparative Constitutional Law (Foundation Press 2014)

Kommers D, The Constitutional Jurisprudence of the Federal Republic of Germany (Duke University Press 1997)

Lipset S M, American Exceptionalism: A Double-Edged Sword (W W Norton 1996)

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Carozza P, ‘Human dignity in constitutional adjudication’ in Ginsburg G and Dixon R (eds), Comparative Constitutional Law (Edward Elgar 2011)

Daniels E, ‘A Brief History of Individualism in American thought’ in Forsyth D, Hoyt C (eds), For the Greater Good of all (Palgrave Macmillan 2011)

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Allen A, ‘Autonomy’s Magic Wand: Abortion and Constitutional Interpretation’ (1992) 72 Brigham Young University Law Review

Cook R, ‘Development in abortion laws: comparative and international perspectives’ (2000) 913(1) Annals of the New York Academy of Sciences

Crabbs K, ‘The German Abortion Debate: Stumbling Block to Unity’ (1991) 6(2) Florida Journal of International Law

Dyer J, ‘The Constitution, Congress and Abortion’ (2017) 11(1) New York University Journal of Law & Liberty

Eberle E, ‘Observations on the Development of Human Dignity and Personality in German Constitutional Law: An Overview’ (2012) 33(3) Liverpool Law Review

Eser A, ‘Abortion Law Reform in Germany in International Comparative Perspective’ (1994) 1(1) European Journal of Health Law

Glendon M A, ‘Individualism and Communitarianism in Contemporary Legal Systems: Tensions and Accommodations’ (1993) Brigham Young University Law Review 385

Glenn P, ‘The Constitutional Validity of Abortion Legislation: A Comparative Note’ (1975) 21 McGill Law Journal

Grabb E, Baer D, Curtis J, ‘The Origins of American Individualism: Reconsidering the Historical Evidence’ (1999) 24(4) Canadian Journal of Sociology

Hoff J, ‘Comparative Analysis of Abortion in Ireland, Poland and the US’ (1994) 17(6) Women’s Studies International Forum

Jackson V, ‘Constitutional Dialogue and Human Dignity: States and Transnational Constitutional Discourse’ (2004) 65 Montana Law Review

Kommers D, ‘Abortion and Constitution: United States and West Germany’ (1997) 25 American Journal of Comparative Law 255

Kommers D, ‘Liberty and Community in Constitutional Law: The Abortion Cases in Comparative Perspective’ (1985) Brigham Young University Law Review 371

Kommers D, ‘The Constitutional Law of Abortion in Germany: Should Americans Pay Attention’ (1994) 10 Journal of Contemporary Health Law and Policy 1

Levy R, Somek A, ‘Paradoxical Parallels in the American and German Abortion Decisions’ (2001) 9 Tulane Journal of International and Comparative Law

Lipset S M, ‘The Value Patterns of Democracy’ (1963) 28 American Sociological Review

Mahlmann M, ‘The Basic Law at 60 – Human Dignity and the Culture of Republicanism’ (2010) 11(1) German Law Journal

Morris D, ‘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

Mount Jr E, ‘American Individualism reconsidered’ (1981) 22(4) Review of Religious Research

Neuman G, ‘Casey in the Mirror: Abortion, Abuse and the Right to Protection in the United States and Germany’ (1995) 43 American Journal of Comparative Law

Rakove J, ‘The Madisonian Moment’ (1988) 55(2) University of Chicago Law Review

Siegel R, ‘Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression’ (2007) 56 Emory Law Journal

Werner U, ‘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

Worthen K, ‘The Role of Local Governments in Striking the Proper Balance between Individualism and Communitarianism: Lessons for and from Americans’ (1993) 2(4) Brigham Young University Law Review

Zhang Y, ‘The Embodiment of Individualist Values in American Nationality’ (2014) 4(3) Studies in Sociology of Science

Zypries B, ‘The Basic Law at 60 – Politics and the Federal Constitutional Court’ (2010) 11(1) German Law Journal

Websites

Yale Law School, ‘Federalist No 10,’ (Avalon Project) <http://avalon.law.yale.edu/18th_century/fed10.asp>

Carla Bleiker, ‘German doctor fined for illegally ‘advertising’ abortions’ (DW, 24 November 2017) <https://www.dw.com/en/german-doctor-fined-for-illegally-advertising-abortions/a 40598436>

Derek Scally, ‘Germany’s ambiguous abortion law rankle with all sides’ (The Irish Ti