Saturday, November 25, 2017

It is 2017, abortion is not legal in Germany, and a doctor is in court for saying she offers the procedure

All three claims in the title of this post are true.

The one that will become patently untrue in a little over a month from now is the first one. Unless the world ends before that.

The other two will continue to be true in 2018.

To the blogster, much of what constitutes the legal system in any of the countries where it* has lived, has elicited more WTF moments than the tweets of a certain president.

"Abortion is not legal in Germany" was one such moment. A few minutes of research showed that the statement is correct. The German penal code is nice enough to have kept the same number for the paragraph that has governed abortion from the times of the newly formed country to this day: paragraph 218. We quote the first part of 218 below under ** and ***.
There are minor differences, from funky spelling in 1982 to a reduction of the maximum sentence from 5 to 3 years, or a fine.
But both versions are clear: a felony it is.

Leaving aside the fact that abortion in the first 12 weeks was legal in East Germany, the basic legal view has been consistent, which leads to the question how German women do get abortions today without the sort of international outcry we see when women in other countries with a felony statute run afoul of the law.

The legal trick is in paragraph 219, which states that no prosecution according to 218 will take place if the pregnant women undergoes specialist consultation and then waits for three days before having the pregnancy terminated. This post does not detail the exact requirements and times, you can look them up elsewhere. Instead, we go to paragraph 219a, which explains the third item of the post title.

"A doctor is in court for saying on her website that she offers the procedure". On 21 November 2017, gynecologist Kristina Haenel from Giessen, Germany, was sentenced to a fine of 6000 Euros for violating § 219a of the penal code, which prohibits "advertising" of abortions. Legal experts have questioned the wide scope of the provision, which basically covers providing any sort of information on terminating a pregnancy outside of the narrow confines of prescribed consultation or medical publications. At first glance, the statute may seem reasonable because it penalizes the activity if it is performed "for financial gain". But courts have held that even doing it at a loss still constitutes "financial gain".

What did the gynecologist do to warrant a felony conviction?
On her website, she lists services offered by her office. Abortion is just a one word bullet point link to an email form where the public can request a flyer.

This outdated provision has been used for decades by self-proclaimed "pro-life" organizations to file reports against individual doctors or organizations.

Mrs. Haenel has indicated that she will fight the conviction in the hope of getting the absurd provision taken up and eliminated by the legislature.

* The blogster does gender neutrality.
**  [1. Januar 1872–8. Juni 1926]  
§ 218.
(1) Eine Schwangere, welche ihre Frucht vorsätzlich abtreibt oder im Mutterleibe tödtet, wird mit Zuchthaus bis zu fünf Jahren bestraft.
***  [16. Juni 1993]
§ 218. 
(1) Wer eine Schwangerschaft abbricht, wird mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe bestraft.

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