Abstract

PIP: A comparison of the difference in approach, philosophy, and percepti on of social implications of abortion in the United States and Germany is examined by contrasting the Roe v. Wade decision of the U.S. Supreme Court with the abortion decision of the German Federal Constitutional Court. Roe v. Wade effectively established abortion on demand prior to "viability" (approximately 6 months) and makes it difficult to prevent it for any reason at any time prior to live birth. When the West German Federal Diet passed the Fifth Law for the Reform of the Penal Code which allowed abortion on request up to 12 weeks of conception and for reasons of maternal health up to 22 weeks, the Constitutional Court declared it null and void 8 months later. The 2 courts reached their decisions for quite different reasons. In the U.S. "Jane Roe" was a real, though anonymous, woman. Other real persons had been trying to overturn abortion statutues in various states. The German court acted on a petition brought by 193 members of the Federal Diet and 4 of the states. It was thus, under the German system, obligated to decide the constitutionality of the revisions in abortion legislation and the decision returned the question to the legislative body. The fundamental difference between the German and the American approach is the "right to life." In America the conflict is between the mother's "right to privacy" and the compelling interest of the state to protect the right to life. At no point does the U.S. Supreme Court consider whether the unborn has rights but only whether they constitute a value the protection of which is a legitimate state interest. In Germany, by contrast, the Federal Constitution explicitly establishes the right to life as a subjective human right; the state not only has no right to take life but acknowledges that this right belongs to the human being himself. The U.S. court reasoned that the unborn have been protected "only" for the last century while the German court stated the right has "already" been recognized for a century. The U.S. Court made no mention of the wider social implications of the decision except for a few brief references; the German court's major consideration was the social implication of the law. An appendix with 6 refs. give a translation of the German court's decision.