Document Type

Article

Disciplines

International Law

Abstract

State transformations brought on by the fall of communism have placed the revision of abortion law on the agenda in many of the affected countries. Hungary had a major constitutional court decision on abortion in 1991 and passed a new law in 1992. Romania and Poland passed new abortion laws, the latter restricting abortion severely2, the former liberalizing it extensively. The Czech Republic as well as Bulgaria modified their laws. In Germany, one of the longest lasting unresolved issues of the unification of Germany on October 3, 1990 was not military or economic, but abortion law and the relation of the united German state to body politics.

The German Democratic Republic (GDR) and the Federal Republic of Germany (FRG) were not only two different political systems, but two different systems of gender politics. Different models of womanhood were embodied in each state's politics - women primarily in the home with only periodic, often part-time forays into the paid labor force (the West German model) or women defined as equally in the productive and reproductive spheres (the East German model). These differences were reflected in two different abortion laws. With the unification of Germany, a new unitary abortion law had to be instituted. The debate over that law lasted more than five years, becoming caught in every twist and turn of the unification process. It revealed how deeply reproductive politics are part of the transformation of a state, involving all aspects of the legal and political processthe parties, the states, the constitutional court and parliament.

The reform of Germany's abortion law, that was finally passed in 1995, required normative counselling for a woman to be permitted to have a first trimester abortion.' For the first time in western Germany, the woman could have an abortion without permission from a doctor or counsellor. However, even if the woman had the requisite counselling, the abortion remained "unlawful but nonpunishable". State regulated health insurance would no longer pay for abortions except for those done for medical reasons or if the pregnancy was due to a criminal act. Social assistance would pay for abortions for women determined to be needy. Since Germany has been so influential in the legal and juridical developments in Eastern Europe and the former Soviet republics, the German counselling model could effect many people beyond the borders of Germany. In this paper I shall first trace the development of abortion counselling in German abortion law, discuss the difficulties in that model, and then review that legislation. In addition, I will posit that the normative counselling model continued in the 1995 Change in the Pregnancy and Family Assistance Act, the law that revised abortion law, which I call a model of "soft" surveillance, undermines and does not give due respect to women's constitutional rights as they should be understood in a democratic order. Next I shall claim that liberalization of abortion law and greater respect for women and their rights are jeopardized by an interest in the social control of women's reproductive powers. Finally, I will argue that the actual counselling model in the 1995 Abortion Law retains the fundamentally antiwoman and patriarchal stance that has been the hallmark of German abortion legislation since its inception.

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