Englischer Text zu Abtreibung, der „Lebensschutz“-Bewegung und Pränataldiagnostik auf illiberalism.org, 10.01.2023
The “pro-life” movement is part of the extreme right that has gained momentum in the U.S. due to the Supreme Court’s decision to overrule Roe v. Wade (1973), which granted women with unwanted pregnancies the right to an abortion. The German “pro-life” movement desires to make a similar impact but simultaneously tries to hide this motivation to appear moderate. Leaders often claim that they only push for a real abiding of the law, not for a tightening of it.
This might seem moderate, even liberal from the outside. However, Germany’s regulation of abortion is particularly complicated and, of course, the Right’s claim is not entirely true but is rather an acknowledgment of the political atmosphere surrounding the topic. Although they wage a cultural war on women’s and LGBTIQ rights, the leaders of the Right try to pretend that they are only fighting for the rights of “unborn babies,” people with disabilities, and mothers-to-be. So, let’s dig deeper into the situation in Germany, the discourse around disability and prenatal testing, and the rhetoric of the “pro-life” movement.
Abortion laws
There are many myths around German abortion laws, with most people believing that abortion is legal, when in fact this is only true in a few rare cases. Even on a progressive website mapping abortion laws, Germany is listed as abortion is possible “on request.” People with more insight still believe that the current law is a “good compromise” that serves everyone.
Abortion is generally illegal and punishable by a fine or imprisonment of up to three years under Section 218 of Germany’s Criminal Code. Until the 12th week of pregnancy, a pregnant person can seek an abortion without being punished after compulsory counselling and a three-day waiting period. These kinds of abortions are “unlawful but not punishable.”
The obligation to seek counselling before an abortion is regulated in Section 219 of the Criminal Code and specified in the Pregnancy Conflict Act, but their formulations contradict each other. The Criminal Code states that “counselling serves to protect unborn life” and should “encourage the woman to continue the pregnancy,” while the Conflict of Pregnancy Act states that counselling “serves the protection of unborn life” but should be “free from any bias” and “encourage and inspire understanding, not instruct or patronize.”
Only abortions related to cases of rape or where the health of the pregnant person is in danger are strictly legal. Historically, there have been two attempts to legalize abortion and make it accessible within the first weeks of pregnancy. The Bundestag voted for a “Fristenregelung” in 1974 and again in 1993; making abortion up to 12 weeks legal. However, both times the conservative party, which then was the ideological home of the large parts of the “pro-life” movement, appealed to the Supreme Court. The Court declared the laws unconstitutional because the “unborn life” had priority over the pregnant woman’s right to self-determination.
Stigmatization by criminal law means that increasingly fewer doctors in Germany perform abortions and that unintended pregnant people in some parts of the country must travel far to obtain an abortion. Some even go to the Netherlands on account of the country’s more liberal laws and doctors, who are willing to perform late-term abortions. Meanwhile, anti-abortion activists feel justified in their hostility towards doctors and women with unwanted pregnancies.
The obligation to carry to term is a violation of human dignity, professor of law at Humboldt University in Berlin, Ulrike Lembke, argues. The state turns the pregnant woman into an object in order to fulfil its duty to protect. According to Lembke, in a legal system that guarantees the dignity, integrity, and autonomy of women as well, the current abortion laws are incompatible with the constitution.
Disability issues
The Bundestag voted in favor of the current so-called counselling regulation in 1995. At that time, the embryopathic indication, i.e., if the fetus has an impairment, was removed due to pressure from churches and disability associations who argued that permission to abort on the basis of a fetus’s disability was discriminatory. This amendment makes German abortion laws a special case, as the embryopathic indication exists in all other countries with relatively liberal abortion regulations.
When the embryopathic indication was removed in Germany, part of the disability movement assumed that this would limit the abortion of impaired fetuses solely on the basis of being disabled. However, this was not the case. Since then, pregnancies can still be legally terminated if it is assumed that a disability of the child-to-be would place an unreasonable burden on the pregnant woman. Assuming this pregnancy endangers her mental health, the medical indication takes effect. Thus, since the reform of § 218, the medical indication serves decidedly as a “catch-all” indication for abortions previously indicated on the basis of embryopathy.
Doctors are relatively quick to assume that life with a disabled child would be an unreasonable burden. If, however, the pregnant woman herself has psychological problems, is depressed or suicidal, doctors tend to assume that this can be treated in ways other than by an abortion. For this, it is much easier to obtain permission for an abortion on the grounds that a disabled fetus would threaten the pregnant person’s health, than when her health is endangered by other causes. This unequal treatment results from the image of women and widespread ideas about disability.
In 2017, the women’s health organization Pro Familia pointed out the medical indication is “mostly only issued … if there are fetal malformations, but not due to any other severe impairment of the woman’s mental health.” After the 12th week of pregnancy, “in many regions of Germany it is very difficult to find both doctors who issue an indication and facilities that recognize it and perform an abortion in advanced pregnancy due to the woman’s psychological situation if there is no fetal malformation.”
Feminists also often make this assumption about the above-average burden of a child with disabilities. Even though feminists usually point to the lack of resources and aids to justify this assumption, large parts of the movement do not sufficiently address its own fears of weakness and dependency and its own internalized hostility towards the disabled, which make living with a disabled child seem unreasonable. The Pro‑Choice Movement criticizes the fundamental punishability of abortion and demands the abolition of the criminal law paragraphs in Germany. It abstains largely from the uncomfortable questions around prenatal diagnostics and late term abortions. Feminists with disabilities have criticized these gaps and the refusal of abled bodied feminists to engage in a meaningful discussion about these topics since the 1980s.
The idea that a disability is necessarily associated with suffering and pain, and therefore is unbearable for all potentially involved (the disabled child and the parents), is so widespread and normalized that many people find it difficult to perceive it as problematic and ableist.
For highly religious “pro-life” Christians, suffering and pain are considered a good thing, sent as a task from god. This mindset makes them not less ableist in their stance against prenatal diagnostics and abortion than non-Christians, on the contrary: they also see disabled people as a burden, but a heaven-sent one, which they happily carry.
The debate about prenatal tests
Prenatal examinations of the fetus are a standard part of care for pregnant women in the western countries today, and in Germany, health insurance covers the cost of many tests. Although there is medical counsel about which markers and impairments the respective tests look for, this takes place in the logic that these tests offer the pregnant woman security and that the acquired knowledge is positive for the health of the child‑to‑be. However, beforehand the possible next steps are hardly ever communicated: What will happen if an impairment is actually detected?
Only in very few cases the tests pave the way for medical treatment of the fetus or can be useful for birth preparation. The vast majority of examinations only look for a deviation from the norm, for an indication of disability. For the most part, such detection has no positive effect on the child or mother-to-be—in most cases, there are simply no therapeutic measures that could be usefully applied prenatally. Therefore, in the majority of cases, the pregnant person is faced only with the decision whether or not to abort the child-to-be, whose wellbeing was the motivation for the test.
Prenatal tests look for possible defects and damage in the child-to-be and thus promote a deficit-oriented view. With increasing tests, increasingly more targeted disabilities appear preventable and highly problematic instead of normal and a variation of life. By funding the tests, the targeted impairment seems bad enough that the health system is on notice. Thus, the fear of disability is normalized, not reduced.
But these problems are rarely mentioned in a doctor-patient consultation before such tests, which results in the impression that all pregnancy examinations offered are useful, if not important, for the pregnant person and their future child. This applies to an even greater extent to tests whose costs are covered by health insurances.
Since July 2022, pregnant people can use non-invasive prenatal tests (NIPT) for the genetic disabilities trisomy 13, 18, and 21 as part of their health insurance. Trisomy 21 is also known as Down Syndrome; the other two disabilities tend to be more severe. The tests are on the German market since 2012, for self-paying patients. Approval to cover these costs as part of the health insurance comes at the same time as debates about the restricted abortion laws are re-emerging in Germany.
Pro-life movement
The “pro-life” movement focused on the issue of the new tests and described itself as an advocate for disabled people. Each September, the movement holds a “March for Life” rally in Berlin, gathering thousands from all over Germany and German‑speaking countries. The financing of the non-invasive blood tests for trisomy 13, 18, and 21 has been an important topic ever since the beginning of public debate. The “pro‑lifers” even appropriated the slogan of the disability movement “inclusion instead of selection.” With this claim, people with disabilities and their relatives want to express that a well-developed health care and social system is important so that expectant parents can decide to have children with disabilities without fear of social relegation. The Christian fundamentalist movement, on the other hand, used the debate and slogan for its core goal of equating fetuses with born humans. The aim is to extend anti-discrimination policies and human rights to fetuses, which is also expressed in the slogan “inclusion also for the unborn” or “inclusion begins even before birth.”
The abortion of fetuses with disabilities is a particular focus for “pro-lifers” because disabled persons are perceived as the “weakest of the weak,” who need special protection. For years, the march has included signs with pictures of children with trisomy 21 and slogans such as “Responsibility instead of abortion” and “unborn + disabled = worthless?” The “pro-life” movement is clearly trying to present itself as the most important platform of the critics of prenatal diagnostics. They do not rely purely on religious arguments, but incorporate those which seem to work in a secularized society.
The “pro-life” movement claims to defend disabled people, to be their sole advocate. In fact, however, the group is primarily concerned with preventing abortions. In this respect, their motives coincides with the far-right wing party AfD (Alternative für Deutschland). The movement does not care so much about disabled children, but more about using them as a token in their anti‑abortion propaganda.
The “pro-life” movement wants to appear harmless, as friendly people who adhere to conservative—but by no means extreme right—values. First and foremost, they pretend to be concerned about the welfare of everyone, especially children. However, the “children” they want to protect are not yet children at all, but rather, the fetuses or children-to-be in the bodies of pregnant women.
Anti-abortion activists therefore increasingly focus on making access to this medical service more difficult and the experience as unpleasant as possible for women with unwanted pregnancies. To this end, they denounce doctors who announce on their websites that they perform abortions, stand in front of counselling centers and doctors’ offices, and pray or harass women verbally and physically on site. Confronting unintentionally pregnant women with the idea that they are carrying an unborn “child” or “life,” as the “pro-life” movement does, suggests that the fetus on its own has personhood status and is intended to make the woman feel guilty.
For these mostly religiously motivated people, life is in god’s hands; they reject people trying to determine their own lives. They claim to follow a “culture of life,” accusing people with a different lifestyle of following a “culture of death.” These fundamentalist Christians are not only anti-abortionists, they are equally opposed to homosexuality, non-reproductive sex, non-prejudiced sex education, and the questioning of gender stereotypes.
It is, therefore, becoming increasingly important that feminist and disability movements do not allow themselves to be pitted against each other—the right to bodily self-determination and equal participation in society are, after all, among the core demands of both movements. This also requires arguing against the self‑trivialization of the “pro-life” movement and to prevent them from gaining the higher moral ground. For the culture war that the left must win is, after all, a fight about a good life for everyone.