Population policy under the guise of protecting life – the history of Section 218

Section 218 has been a topic of intense political debate ever since it was first incorporated in the Criminal Code of the German Empire on 15 May 1871. It has always been one of the most controversial paragraphs in German law, both legally and socially. In 1995, a compromise solution was found, but since then nothing more has changed. To find out why that is so, and work out what can be done about it, it’s worth taking a look back at the history of Section 218.

Illustration mit zwei Personen, die Protestschilder gegen den §218 halten

Since its introduction, public debate surrounding Section 218 has focused on the perceived right to life of an embryo versus the right to self-determination of the pregnant individual. However, when we take a closer look at the lines of argument employed through the years by proponents of Section 218, we gain a clear impression of how this morally and religiously charged stance actually arose from concerns about low birth rates. Legal expert Dirk von Behren studied the history of Section 218 and its consequences in great detail in 2004 and came to the conclusion that the oft-cited maxim of protecting the “sanctity of unborn life” has often merely been used as a pretext for “utilitarian population policies”.[1] Does that mean that the criminalisation of abortion is merely an instrument serving population policy ends? In any case, it is certain that the question to what extent abortion should be permitted or punished relates fundamentally to the relationship between the sexes and depends heavily on patriarchal power structures.

From destruction of property to homicide

A look back at antiquity shows that this has long been the case, at least in Europe. Von Behren believes that Section 218 has its origins in legal history going back to Ancient Rome. In the Roman Empire, abortion was not regarded as culpable homicide – indeed, Aristotle even proposed “induced abortion” as a way of controlling excess population. The foetus was not viewed as a person, but as a dependent part of the “maternal viscera”. However, since children – born or unborn – were regarded as the property of their father, abortion could be considered as cheating a father of his rights. That meant a person who performed an abortion without the permission of the father could be guilty of an offence and forced to pay compensation, but there were no laws pertaining to abortions induced by the mother herself without medical assistance. A law banning abortion was not introduced until the reign of Emperor Septimius Severus (193–211 AD), who was worried about plummeting birth rates.[2]  
Once Christianity took hold, the biological father with a right of ownership over the embryo was replaced by “God the Father”, whose representatives on Earth had the divine power to preside over right and wrong. Abortion came to be regarded as homicide, and the foundations were laid for legal doctrines that still prevail today.
Opinion was also greatly influenced by a Christian interpretation of Aristotle’s theory of successive ensoulment.[3] This stated that the foetus goes through three phases, and not until the final phase does it gain a soul. Aristotle believed that the human soul entered a male foetus at 40 days and a female soul at 80 days after conception. Since sex could not be determined in the womb, abortion was only punishable after the 80th day. That corresponds roughly to today’s gestational age limit of 12 weeks for abortion with impunity.
This view remained controversial until the late Middle Ages, and interpretations varied across the different regions. In 1588 Pope Sixtus V rejected the differentiation between ensouled and soulless – not, of course, because of some anti-sexist awakening, but because he decided that abortion at any stage of gestation should be subject to punishment as it is robbing the foetus of its chance to acquire a soul. (That same logic was used to ban contraception in Germany, even into the 20th century.) But Sixtus was also worried about declining population numbers.[4] His successor, Gregory XIV, reversed the decision, so that once again only abortion of a formed, ensouled foetus was punishable.

The embryo as a citizen of the state

It wasn’t only the Church that was divided over the issue. New medical findings and fluctuating demographic developments led to constantly shifting legal approaches and greatly differing practices from region to region. Depending on the currently applicable definition of when “quickening” took place and in which gestational week an abortion was performed, cases of abortion were met with lesser or more severe punishments – in many cases the death penalty. But almost all laws in place during that time considered abortion a “crime against life”. The Bavarian Penal Code, reformed in the early 19th century, became the basis for the German Criminal Code of 1871. The legal scholar primarily responsible for reframing the Bavarian Penal Code was Paul Johann Anselm Ritter von Feuerbach, and he made no secret of the state’s growing interest in a secure supply of future citizens:
“The embryo, too, is a human being, and although the state is not obliged to protect him, it does have the right to keep him, as a future citizen.”[5]
The concept of the state’s duty to protect was born, although not to “protect unborn life” as a general principle, but simply to preserve its population. At the 2012 Forum Deutscher Katholiken (Forum of German Catholics), Nathanael Liminski (CDU), current head of the State Chancellery of North Rhine-Westphalia and close advisor to CDU chancellor candidate Armin Laschet, used remarkably similar argumentation when lamenting the decline in births in Germany since the 1970s and its consequences for the social security system:
“I would now like now to refer to the way we treat our second natural resource – that is, the gift of life. […] According to figures from the Federal Statistical Office, around 125,000 to 130,000 children are aborted every year. […] Those are citizens that are irretrievably lost – for their parents, for their families, but also for our society.”[6]
Thus, we see, that both, in the past and the present, religious concepts of when human life begins are referred to in the same breath as a state’s claims on to its future citizens. And this is where von Behren sees the origins of the paradox whereby abortion remains generally unlawful or impermissible on the one hand, but on the other hand is not punishable or subject to only a milder punishment under certain conditions. Women who get abortions are still shunned, although the practice is tolerated depending on circumstances and the mood of the times. A precursor to this paradoxical situation can be identified in the initial wording of Section 218, which was incorporated into the German Empire’s Criminal Code in 1871:
 “Section 218: A woman with child, who wilfully procures abortion or slays the child in the womb, shall be punished by penal servitude up to five years. If extenuating circumstances exist, the punishment of imprisonment with labour for not less than six months takes place.”[7]
Under the following provision, Section 219, the person performing the abortion was subject to even greater punishment – imprisonment of up to ten years. Given the actual abortion figures in Germany at that time, we can assume that Section 218 failed to have the desired effect. The threat of punishment does not seem to have reduced the number of abortions; on the contrary, the number of convictions under the law actually quadrupled from 1882 to 1908 – from 191 to 773. Of course, this figure is much lower than the presumed actual number of abortions, which can be estimated at between 200,000 and 400,000 a year.[8] The new law led to countless illegal and unsafe abortions, which often led to the death of the women concerned. The health and legal ramifications of Section 218 disproportionately affected working class women, which led to it being nicknamed the Klassenparagraf, or classism clause. And this is something that remains true of that law to this day.

Resistance to “forced childbearing”

Opposition to Section 218 arose soon after its introduction. The German women’s movement emerged in the years before 1900, but women were not permitted to form associations until the year 1908. In 1909, the umbrella organisation Bund Deutscher Frauenvereine (Federation of German Women's Associations) submitted a petition to the Reichstag calling for reform of Section 218, proposing exemption from punishment where abortions were carried out within a specified number of gestational weeks. The Reichstag overwhelmingly rejected the petition. Birth rates had been dropping since 1900, leading to an excessive whipping up of fears of the “scourge of depopulation” and a pronatalist population policy whose goal was to secure an adequate supply of soldiers and workers by restricting access to contraception and abortion.[9] In 1913, shortly before the outbreak of war, the proletarian women’s movement resisted this exploitation of women’s fertility by the state and the military and called for a Gebärstreik, or birth strike. 
Liberalisation during the Weimar Republic created a brief window for open public debate between anti-abortionists and opponents of “forced childbearing”. A clandestine network of counselling centres arose that put women with unwanted pregnancies in contact with willing physicians. Spearheading that network was the Bund für Mutterschutz und Sexualreform (League for the Protection of Motherhood and Sexual Reform), whose far-reaching demands – access to free contraception, progressive sex education, and repeal of Section 218 – have still not been met to this day.[10] Although these goals were not achieved, minor reform was introduced in 1926, when parliament came to a minimum consensus downgrading abortion from a “crime” to a “misdemeanour”, with less severe punishment. Then, in 1927, a Reich Supreme Court ruling judged abortions performed for medical reasons to be permissible. That ruling continued to be applied in the Federal Republic until the 1970s, effectively acting as a statutory stand-in for a specific law permitting abortion on medical grounds.
Of course, those tentative steps towards reform were obliterated by the racial ideology of the National Socialist regime from 1933 onwards. Abortion laws weren’t so much concerned with protecting “unborn life” as with ensuring the “vitality of the Volk”. The Nazis were entirely open about their population policy goals. Instead of being classed as homicide, abortions performed on biologically fit German women became an “injury to our sacred healthy race”. Abortions for medical reasons were still allowed, and now abortions for eugenic reasons came to be permitted as well – based on a policy of selecting and eradicating the mentally ill and other “unwanted” people. Abortions became completely legal for Jewish, Romani, Sinti and disabled women and for other, so-called anti-social elements; in some cases these abortions were actively encouraged or even coerced by the regime. All other abortions were punishable by death.[11] Although the Allied powers abolished the new laws after the liberation of Germany, abortion and contraception remained prohibited.

Still a long way to go

In the conservative West Germany of the 1950s and 60s, population policy goals moved to the fore. Multi-child families came to be regarded as a source of strength for the state, especially when seen through the prism of the Cold War. Thus, abortion remained illegal in most cases. In the 1970s, a new, remarkably vocal women’s movement took action against this lack of progress. Under the motto “Mein Bauch gehört mir” (“My belly belongs to me”), women marched on the streets, calling for their right to self-determination. The movement also organised abortions for German women in the country’s more liberal neighbour, the Netherlands. In 1971, Stern magazine ran its famous “Wir haben abgetrieben” (“We’ve had abortions”) cover story, and the Aktion 218 protests increased pressure on lawmakers to the extent that in 1974 the Bundestag introduced an amendment, stating that women who had abortions would be exempt from punishment if no more than 12 weeks had elapsed since conception.[12] However, the new law was quickly struck down by the Federal Constitutional Court after an appeal by the conservative parties CDU/CSU, who thus established themselves as perennial defenders of “developing human life” that had priority over a woman’s right to self-determination.[13] The Bundestag amended the law by adding the so-called Notlagenindikation that allowed women to have an abortion on grounds of social hardship. However, access to abortions continued to vary widely between the German Länder. In 1993, the interplay between strong conservative forces in the Bundestag and the no-less conservative Constitutional Court was the cause of a further setback to progress. Instead of taking over the GDR’s liberal policy of allowing abortion within 12 weeks without the obligation to obtain counselling, which had been introduced in 1972, reunified Germany retained Section 218 in an only slightly adapted form. Abortion remains an offence, with offenders exempt from punishment only under certain conditions including compulsory counselling at least three days prior to the procedure (time to “reconsider”). While this compulsory counselling is supposed to be unbiased as to result, it explicitly “serves to protect the unborn life”. That wording, adopted in 1995, remains in the German Criminal Code to this day. More than 150 years since the code was originally formulated, the state continues to defend divine creation and potential future citizens of the state at the expense of an individual’s need to make decisions about their own body and their own life. Section 218 remains an instrument of coercion that deliberately perpetuates patriarchal power structures. It’s high time that was changed.

Fast facts

Section 218 of the German Criminal Code regulates abortion. According to this statute, anyone who terminates a pregnancy is acting unlawfully and can be punished with imprisonment for up to three years. Under certain conditions, however, the abortion is “exempt from punishment”, but the pregnant person must attend a compulsory counselling session at a state-approved counselling centre and observe a three-day period of reflection. In addition, the abortion must take place before the end of the 12th week of gestation. The costs for the procedure are usually not covered. Abortions on medical and criminological grounds or Indikationen are permissible. According to the Federal Statistical Office, 99,948 pregnancies were terminated in Germany in 2020, with 96 percent of these abortions performed under the counselling rule or Beratungsregel.

[1] Behren, Dirk von. Die Geschichte des §218 StGB, Rothenburger Gespräch zur Strafrechtsgeschichte, vol. 4. Psychosozial-Verlag; 2020: p. 13 et seq.

[2] Ibid., p. 23 et seqq.

[3] Ranke-Hanemann, Uta. “Nun lächelt Maria nicht mehr”. Der Freitag; 2004, available at https://www.freitag.de/autoren/der-freitag/nun-lachelt-maria-nicht-mehr (last accessed 7 May 2021).

[4] Behren. 2004: p. 26.

[5] Feuerbach, Paul Johann Anselm von. Lehrbuch des gemeinen in Deutschland gültigen peinlichen Rechts. Gießen; 1820: p. 350.

[6] Liminski, Nathanael in his speech at the Forum of German Catholics; 2012, available at https://www.youtube.com/watch?v=cbxVLQQaX5U (last accessed 7 May 2021).

[7] RGBI. I 1871, p. 127 et seqq.

[8] Behren. 2004: pp. 49–55.

[9] Notz, Gisela (2015): Die unendliche Geschichte des §218. p. 2, available at https://www.arbeitskreis-frauengesundheit.de/wp-content/uploads/2015/10… (last accessed 6 May 2021).

[10] Ibid., p. 1.

[11] Ibid., p. 3.

[12] Digitales Deutsches Frauenarchiv. “Die Abtreibungsdebatte der neuen Frauenbewegung”; available at https://www.digitales-deutsches-frauenarchiv.de/themen/die-abtreibungsd… (last accessed 5 May 2021).

[13] BVerfGE 39, 1 – Schwangerschaftsabbruch I [Decisions of the Federal Constitutional Court 39, 1 – Abortion 1], available at https://www.servat.unibe.ch/dfr/bv039001.html (last accessed 7 May 2021).