Guiding Principles applicable to the judgment of the First Senate of the 25th of February, 1975:

—1 F.C.C. 1/74—

—1 F.C.C. 2/74—

—1 F.C.C. 3/74—

—1 F.C.C. 4/74—

—1 F.C.C. 5/74—

—1 F.C.C. 6/74

1. The life which is developing itself in the womb of the mother is an independent legal value which enjoys the protec­tion of the constitution (Article 2, Paragraph 2, Sentence 1; Article 1, Paragraph 1 of the Basic Law).

The State's duty to protect forbids not only direct state attacks against life developing itself, but also requires the state to protect and foster this life.

2. The obligation of the state to protect the life developing itself exists, even against the mother.

3. The protection of life of the child en ventre sa mere takes precedence as a matter of principle for the entire duration of the pregnancy over the right of the pregnant woman to self­determination and may not be placed in question for any par­ticular time.

4. The legislature may express the legal condemnation of the interruption of pregnancy required by the Basic Law through measures other than the threat of punishment. The decisive factor is whether the totality of the measures serving the protection of the unborn life guarantees an actual protection which in fact corresponds to the importance of the legal value to be guaranteed. In the extreme case, if the protection required by the constitution cannot be realized in any other manner, the legislature is obligated to employ the criminal law to secure the life developing itself.

5. A continuation of the pregnancy is not to be exacted (legally) if the termination is necessary to avert from the pregnant woman a danger to her life or the danger of a serious impairment of her health. Beyond that the legislature is at liberty to designate as non‑exactable other extraordinary burdens for the pregnant woman, which are of similar gravity and, in these cases, to leave the interruption of pregnancy free of punishment.

6. The Fifth Statute to Reform the Penal Law of the 18th of June, 1974, (Federal Law Reporter I, p. 1297) has not in the required extent done justice to the constitutional obligation to protect prenatal life.

The Federal Constitutional Court

—1 F.C.C. 1/74—

—1 F.C.C. 2/74—

—1 F.C.C. 3/74—

—1 F.C.C. 4/74—

—1 F.C.C. 5/74—

—1 F.C.C. 6/74—

announces a decision

on the 25th of February 1975,

Hempel,

being the chief secretary of the government

acting as clerk of the court,

IN THE NAME OF THE PEOPLE

In the proceeding

for constitutional examination of the Fifth Statute to Reform

authonzed representatives:

a) Prof. Dr. Fritz Ossenbuhl

Meckenheixn, sergstrasse 15,

b) Prof. Dr. Hans‑Joachim

Rudolphi, Bonn‑Lengsdorf,

von Kaferberr

—1 F.C.C. 3/74— The government of the free State of Bavaria represented by the Prime Minister, Munich 22 Prinzregentenstrasse 7 uthonzed representative: Director of the Ministry Prof. Dr. Walter Odersky, Munich, Elisenstrasse la—

— 1 F.C.C. 4/74— The government of the State of Schleswig‑Holstein, represented by the Pnme Minister, Kiel, State Capital

— 1 F.C.C. 5/74—

VI. The government of the State of Rhineland‑Pfalz, represented by the

Minister of Justice, Mainz, Ernst‑Ludwig‑Strasse 3

—1 F.C.C. 6/74— the Federal Constitutional Court ‑ First Senate President of the Court Dr. Benda, presiding,

 and Justices    Ritterspach,

                                                Dr. Haager,

                                  Rupp von Brunneck,

                                               Dr. Bohmer,

                                                  Dr. Faller,

                                                   Dr. Brox,

                            Dr. Simon, participating,

on the basis of the oral argument of the 18th and l9th of

November 1974, recognizes as law by this opinion:

HOLDING

I. Section 218a of the Penal Code in the version of the Fifth Statute to Reform the Penal Law (5 PLRS) of June 18, 1974, (Federal Law Reporter I, p. 1297) is incompatible with Article 2, Paragraph 2, Sentence 1, in conjunction with Article 1, Paragraph 1, of the Basic Law and is null insofar as it excepts the interruption of pregnancy from criminal liability when no reasons are present which, in the sense of the reasons for this decision, have validity in the ordering of values of the Basic Law.

II. Until a new statutory regulation goes into effect the following is ordered under the authority of §35 of the Statute of the Constitutional Court:

1. §218b and §219 of the Penal Code in the version of the

Fifth Statute for the Reform of the Penal Law (5 PLRS)

of June 18, 1974 (Federal Law Reporter I, p. 1297) are

to be applied to interruptions of pregnancy during the

first twelve weeks after conception.

2. An abortion performed by a physician with the consent of the pregnant woman within the first twelve weeks after conception is not punishable under §218 of the Penal Code if an illegal act pursuant to §§176‑179 of the Penal Code has been committed against the pregnant woman, and compelling reasons demand the assumption that the pregnancy is a result of the act.

3. If the interruption of the pregnancy is performed by a physician within the first twelve weeks after conception with the consent of the pregnant woman to avert from the pregnant woman danger of a serious calamity which cannot be averted in any other way which is exactable from her, the court may forgo a punishment under §218.

Reasoning:

A.

The subject matter of the proceeding is the question whether the so‑called regulation of terms of the Fifth Statute to Reform the Penal Law according to which termination of pregnancy remains free of punishment during the first twelve weeks after conception under certain conditions is consistent with the Basic Law.

1. The Fifth Statute to Reform the Penal Law (5 PLRS) of June 18, 1974 (Federal Law Reporter I, p. 1297) has regulated punishability of the interruption of pregnancy in a new manner. Sections 218 to 220 have been replaced by provisions which visa‑vis the previous state of the law contain primarily the following alterations

As a matter of principle, anyone who interrupts a pregnancy more than 13 days after conception shall be punished (§218, Par. 1). An abortion performed by a physician, however, with the consent of the pregnant woman is not punishable under §218 if not more than twelve weeks have elapsed since conception (§218a— Regulation of Terms.). Furthermore, an interruption of pregnancy performed by a physician with the consent of the pregnant woman after the expiration of the twelve week period is not punishable under §218 if the abortion is indicated, according to the judgment of medical science, to avert from the pregnant woman either a danger to her life or the danger of a serious impairment of the condition of her health to the extent that these dangers cannot be averted in a fashion which is otherwise exactable (§218b, No. 1— Medical Indication).E Furthermore, abortion is not punishable if compelling reasons demand the assumption that the child, because of an hereditary disposition or harmful influences before birth, will suffer impairment to its health which cannot be alleviated and which are so weighty that the continuation of the pregnancy cannot be demanded of the pregnant woman, and not more than 22 weeks have elapsed since conception (§218b, No. 2 ­Eugenical Indication). Anyone who interrupts a pregnancy without the pregnant woman first having received social and medical counseling at a counseling center or from a physician shall be punished (§218c). Even so an individual makes himself liable to punishment if he interrupts a pregnancy after the expiration of twelve weeks from conception without a competent counseling center having previously certified that the prerequisites of §218b (Medical or Eugenic Indications) have met (§219). The pregnant woman herself shall not be punished either under §218 or under §219.

In particular, the provisions which are essential for the present proceeding provide as follows:

§218

Interruption of Pregnancy

A:

(1) Anyone who interrupts a pregnancy after the 13th day following conception shall be punished by incarceration up to three years or fined.

(2) The punishment shall be six months to five years if the actor

1. acts against the will of the pregnant woman, or,

2. wantonly causes the danger of death or serious impairment of health to the pregnant woman.

The court can set up a supervision authority. (§68, Par. 1, No. 2).

(3) If the pregnant woman commits the act, the punishment is incarceration up to one year or a fine.

(4) The attempt is punishable. The woman shall not be punished for an attempt.

§218a

Freedom from Punishment for Interruption

of Pregnancy in the First Twelve Weeks

An interruption of pregnancy performed by a physician with the consent of the pregnant woman is not punishable under § 218 if no more than twelve weeks have elapsed since conception.

§218b

Indications for Interruption of

Pregnancy After Twelve Weeks

An interruption of pregnancy performed by a physician with the consent of the pregnant woman after the expiration of twelve weeks after conception is not punishable under ß218 if, according to the judgment of medical science:

1.                                              The interruption of pregnancy is indicated in order to avert from the pregnant woman a danger to her life or the danger of a serious impairment to the condition of her health insofar as the danger cannot be averted in a manner that is otherwise exactable (reasonably expected) from her, or

2.                                              Compelling reasons require the assumption that the child will suffer from an impairment of its health which cannot be remedied on account of an hereditary disposition or injurious prenatal influences which is so serious that a continuation of the pregnancy cannot be exacted (reasonably expected) of the pregnant woman; and not more than 22 weeks have elapsed since conception.

ß218c

Interruption of Pregnancy Without Instruction

and Counseling of the Pregnant Woman

                                                 (1) He who interrupts a pregnancy without the pregnant woman:

1.                                              first having, on account of the question of the interruption of her pregnancy, presented herself to a physician or to a counseling center empowered for the purpose and there been instructed about the public and private assistance available for the pregnant women, mothers and children, especially such assistance which facilitates the continuation of the pregnancy and eases the condition of mother and child, and

2.                                              having been counseled by a physician,

shall be punished up to one year incarceration or by a fine if

               the act is not punishable under ß218.

(2)                                            The woman upon whom the operation is performed is not subject to punishment under Paragraph one.

ß219

Interruption of Pregnancy

Without Expert Opinion

(1)                                            Anyone who interrupts a pregnancy after the expiration of twelve weeks after conception without a competent counseling center having confirmed that the prerequisites of ß218b No. i or No. 2 are satisfied, shall be punished with incarceration up to one year or by fine if the act is not punishable under ß218.

(2)                                            The woman upon whom the operation is performed is not subject to punishment under Paragraph one.

2.            According to previous law the killing of a child in the womb of its mother was generally a punishable act (ß218 of the Penal Code). To be sure, at latest since the decision of March 11, 1927, of the Reichís Court (Penal Law Decision of the Reichís Court 61, 242) the justifying reason, in the case of the so-called medical indication, of an extra-legal emergency according to the principles of a balancing of underlying values and corresponding duties was recognized by legal opinions. After that the act lost its illegality in the case of a serious danger to the life or health of the pregnant woman which could not be averted by other means to the extent the operation was undertaken by a physician with the consent of the pregnant woman according to the standards of the medical art. By Paragraph 14 of the Statute for the Prevention of Hereditarily Ill Offspring in the edition of the amendatory law of June 26, 1935, (Reichís Reporter of Law I, p. 773) these prerequisites for the terminations of pregnancy permissible on medical grounds were legally established. This provision was valid in some states of the Federal Republic even after 1945; where it was repealed, the prerequisites quoted therein, pursuant to the decision of the Federal Court of January 15, 1952 (Penal Law Decisions of the Federal Court of Justice 2, 111), were to be considered as the minimum requirements for the permissability of the interruption of pregnancy according to the principles of supra-legal emergency.

3. The penal provision of ß218 derives its essential meaning from ßß181 and 182 of the Penal Code for the Prussian states of April 14, 1851 (Collection of Statutes, p. 101) because these provisions served as a model for the regulation, in the Penal Code of the North German League of May 31, 1870 (Federal Law Reporter of the North German League, p. 197), which were incorporated word for word in the Penal Code for the German Reich of May 15, 1871 (Reichís Reporter of Law, p. 127). The provision read in its original version as follows:

ß218

A pregnant woman who intentionally aborts her fetus or kills

it in her womb shall be punished with up to five years in the

penitentiary.

If extenuating circumstances are present, an incarceration

for not less than six months will result.

The same penal provisions have application to anyone who,

with the consent of the pregnant woman, applies the means for

the abortion or killing or supplies them to her.

The penal provision remained unchanged for more than 50 years. The Statute for the Revision of the Criminal Code of May 18, 1926, (Reichís Reporter of Law I, p. 239) first mitigated the sanctions (in principle incarceration, however, penitentiary imprisonment for the professional abortionist).

Under the Order for the Realization of the Decree for the Defense of Marriage, Family and Motherhood of March 18, 1943 (Reich's Reporter of Law I, p. 169), the penal sanctions were once again considerably increased.

The First Statute for the Reform of the Penal Law (1 PLRS) of June 25, 1969, (Federal Law Reporter I, p. 645) mitigated the penalty in the case of the self-administered abortion in which the especially difficult case was present. An abortion by a professional was reduced to a misdemeanor.

4.                                            a) The general proscription of abortion was an object of attack from the beginning. Especially after the turn of the century a lively discussion began within the field of legal science about the wisdom of punishing abortion. Doubts were already setting in about the question of which legal values should be protected by the prohibition of abortion. The allowance of exceptions from the unlimited prohibition and the proper assessment of the penalties to be applied were also discussed.

The original draft for a German Penal Code published in 1909 by the Ministry of Justice of the Reich; the counterproposal of 1911 by Professors Kahl, von Lilienthal, Franz v. Liszt and Goldschmidt; the draft based an the conclusions of the Commission of Penal Law of 1913; and, the Draft of 1919 proposed merely to lessen the penalty. In the reasoning for the Draft of

1919, freedom from punishment for interruption of pregnancy

was rejected "in view of the serious harm to the public good

which results from the spread of abortion."

b)                                                        During the Weimar Republic, within the scope of the

               efforts to bring about a sweeping reform of the penal law-- although such efforts came to no conclusion--ß218 was once again

the object of a lively discussion. A large number of bills and      proposals for the reform of this penal provision were introduced into the parliament. Some of them pursued the goal of eliminating ßß218 to 220 without replacement. Others suggested removal of the criminal penalty for the first three months of pregnancy.

               A proposal which Mrs. Schuch, Prof. Radbruch and 53 other members of the Social Democrat Party introduced into the

Reichstag on July 31, 1920, provided for freedom from punishment for abortion "if the abortion is performed by the pregnant woman or by a physician recognized (approved) by the state, during the first three months of pregnancy" (also ef. Radbruch's reasoning in Grotjahn-Radbruch, "The Abortion of the Child en ventre sa mere," 1921). None of the applications was ultimately successful.

The draft of a General German Penal Code, which Radbruch proposed in 1922 when he was the Reich's Minister of Justice and which became the foundation for further work on the reform of the penal law, proposed imprisonment for abortion (cf. "Gustav Radbruch's Draft for a General German Penal Code (1922)," Tubingen 1952, p. 28, Section 225). The Drafts of 1925, 1927 and 1930 proposed similar regulations.

c)    During the National Socialistic period abortion was seen principally from the points of View of the "defense of the people's strength," "attacks on the vital energy of the people," and "attacks on race and heredity." The goal of these endeavors, with the exception of several indicated cases which were to remain without punishment, was to increase punishment severely (cf. also ßlOa of the Statute for the Prevention of Hereditarily Ill Offspring).

5. As a provisional result of the work of reform on the penal code which was resumed after 1945, the Federal Ministry of Justice in the year 1960 drew up a comprehensive draft together with reasoning on the basis of the conclusions of the Great Criminal Law Commission. The draft made use of the recommendations of a commission of the states (Draft of a Penal Code-Draft 1960-with Reasoning, Bonn 1960).

Thereafter abortion remained punishable as a matter of principle (ßß140, 141); in the case of a medical indication, however, freedom from punishment was allowed (ß157). Further, according to ß160 the penalty would be disregarded in the case of a killing of the child en ventre sa mere undertaken by a physician with the consent of the pregnant woman if the court has determined that someone has committed rape against the woman or an indecent assault while she was mentally ill, without will to resist, unconscious, or physically incapable of resistance; or she is carrying sperm from a man other than her husband without her consent and compelling reasons demand the assumption

the pregnancy is a result of the act, provided that not more

han twelve weeks have elapsed from the end of the month in

that

hich the inception of the pregnancy occurs.

This ethical indication was, however, not contained in the

ersion of the draft of 1960 proposed by the Federal Government to the lawmaking bodies (cf. Federal Press, 270/60, p. 38 and p. 278). This draft did not come up for consideration in the third

election period.

In the year 1962 a new governmental draft was submitted to the lawmaking bodies, which adopted ßß140, 141, 157 of the Draft of 1960 in an essentially unchanged form (cf. Federal Press, 200/62, p. 35/36, 38). Even this draft could not be ratified in the fourth election period of the Federal Parliament.

rn November 1965 the Draft of 1962 was introduced as the draft of a private bill by a group of members to Federal Parliament (Federal Parliamentary Press, V/32). The Federal Parliament referred the draft to the Special Committee for the Reform of the Penal Law, which, basing its conclusions upon the so-called Alternative Draft of a Criminal Code (General Part) published in 1966 by German and Swiss criminal law scholars, submitted two partial drafts for the reform of the penal law which were enacted in 1969 as the First and Second Statute for the Reform of the Penal Code. By virtue of the first statute the penalties of ß218 of the Penal Code were placed within the milder framework of punishment already mentioned. In the deliberations in the Special Committee on Penal Law there was unanimous agreement that the problematic presented by ß218 was not resolved with the adjustment of the measure of punishment but rather that a comprehensive reform of this area must follow (cf. the statements of Deputy Dr. Miiller-Emmert, Fifth Election Period, 144th session of the Special Committee for the Reform of the Penal Law, Stenographic Reports, p. 3195).

                                                     The Special Part of the Alternative Draft published in 1970

                                                  was based on this idea (Alternative Draft, Special Part, Crim--

                                                  inal Acts against the Person, First half volume, Tiibingen

                                                  1970, p. 25 ff.). Interruptions of pregnancy were--so it was                                                          represented--almost without exception forbidden and punishable.

                                                  The social reality, however, was so far removed from these legal

norms that the penalties could hardly exercise any effect.

                                                 According to this view, this would be in large measure injurious and insufficient since the destruction of developing life is, apart from exceptional situations, not only ethically reprehensible but also represents the destruction of an intrinsic legal value. The authors could not, however, agree about legislative measures

                                                 with which an effective protection of developing life could be achieved.

The majority decided to leave the interruption of pregnancy

free from punishment during the first three months of pregnancy;

and, indeed absolutely so within four weeks after conception; and in the second and third month on the condition that the interruption is performed by a physician after the pregnant woman has sought out a counseling center (ß105, Alternative Draft). The following considerations were presented on this point:

The fundamental conception of this suggestion is that the decision of a woman to interrupt her pregnancy and the realization of the decision can only be effectively countered by guaranteeing to the pregnant woman, within the boundaries of the possible, help for the alleviation of the material, social and familial difficulties which drive her to abortion and by enabling her to make a considered and responsible decision through a personal consultation and frank discussion. The institution of the counseling centers should serve this purpose. .

The counseling centers should, therefore, possess the capability to provide financial, social and familial assistance. Furthermore, they should provide spiritual care for the pregnant woman and her relatives through suitable associates and thereby make it quite clear to those involved that the interruption of pregnancy, from the medical standpoint as well, is no trifling matter but rather a serious operation having, under certain circumstances, momentous consequences and that the interruption itself, even for the most pressing motives, represents the destruction of developing life and therefore interferes with and violates a high ethical responsibility. (bc. cit., p. 27).

The woman inclined to abortion, according to this view, should be able to make use of the counseling center without having to fear that the realization of her intention will thereby be rendered legally impossible. An interruption of pregnancy performed later than three months after conception should remain free of punishment only if medical or eugenical indications are present, in which case the prerequisites of such indication are to be determined at a medical speciality center (~106, Alternative Draft).

The minority did not see in this suggestion any effective protection of developing life, but at most an indirect protection, a protection that would be abandoned in all cases in which the pregnant woman could not be convinced at the counseling center. For this reason, the representatives of this opinion, as a matter of principle, adhered to the punishability of the interruption of pregnancy with the exception of the first four weeks. They proposed freedom from punishment, however, "if carrying the pregnancy to term was not exactable from the pregnant woman upon consideration of the total circumstances of her life," and made this general clause concrete with a catalog of five indications. A further prerequisite for freedom from punishment should be the consent of the pregnant woman as well as the approval of a medical speciality center and that the interruption be performed in the first three months after conception.

6. At the beginning of 1972 the Federal Government submitted the draft of a Fifth Statute for the Reform of the Penal Law (5 PLRS) (Federal Press, 58/72). The draft adhered to the fundamental punishability of the interruption of pregnancy. In the reasoning it was explained that human life even before birth is a legal value which is worthy of protection and which requires protection. The Basic Law, in Article i and Article 2, Paragraph 2, has made a value decision for life. In the reform of the abortion provisions it is accordingly not a question of the elimination of criminal offenses which have as their object behavior which is not socially destructive. A reform of the penal law which is oriented to the basic legal order must so structure the regulations governing abortion that the protection of developing life is guaranteed at the first opportunity under the circumstances. For this purpose, according to this view, the reform must do justice to the principle of the legal inviolability of developing life and at the same time strike a balance between the right of the unborn child and the human dignity of the pregnant woman as well as her right to the free development of her personality. Therefore, an absolute precedence cannot be granted either to the one right or to the other. In especially difficult conflict situations, it is of importance to find solutions which take into account the value judgment of the constitution (bc. cit., p. 8).

According to this view, the regulation of terms could only fulfill the expectations of public health, to which it is bound, if every interruption of pregnancy within the first three months appears to have the approval of the law. This would be incompatible with the hierarchy of values in the constitution. If society recognizes developing life as a legal value worthy of protection and of comparably high rank, it could not make the destruction of this legal value dependant upon the untrammeled pleasure of the individual without coming into conflict with this premise (bc. cit., p. 9).From this point forward the draft rejected the "term solution” which was discussed in such a lively fashion in the time of the Weimar Republic as well as at the present," and determined that exceptions from the fundamental prohibition of the interruption

                                                 of pregnancy could only acquire validity by establishing a statutory indication. An indication should be assumed,

a)                                              if the interruption of the pregnancy was indicated in the judgment of medical science in order to avert from the pregnant

woman the danger for her life or the danger of a serious impairment of the state of her health insofar as the danger could not be averted in any other way which was exactable for her (ß219

Medical Indication).

b)                                              if, according to the judgment of medical science, compelling reasons require the assumption that the child, as a consequence of an heriditary disposition or the consequence of harmful influences before birth, will suffer damage to its condition of health which cann6t be alleviated and which condition is so serious that the continuation of the pregnancy cannot be demanded from the pregnant woman, provided that not more than 20 weeks have elapsed since the beginning of the pregnancy (ß219b Eugenic or Indication from the Condition of the Child).

c)            when an illegal act has been committed against the pregnant woman pursuant to ß176 (the sexual abuse of children), ß177 (rape) or ß179, Par. i (the sexual abuse of those incapable of resistance) and compelling reasons require the assumption that the pregnancy resulted from the act, provided that no more than twelve weeks have elapsed since the beginning of the pregnancy (ß219c Ethical or Criminalogical Indication).

d)      if the interruption of the pregnancy is indicated in order to avert from the pregnant woman the danger of a grave calamity, provided that the danger cannot be averted in another way that is exactable from her and if not more than twelve weeks have elapsed since the beginning of the pregnancy (ß219d Social or Emergency Indication).

In the presence of one of these indications an interruption of pregnancy performed by a physician with the consent of the pregnant woman should not be punishable under ß218. The commencement of pregnancy within the sense of the statute was fixed at the conclusion of the process of implantation of the fertilized egg in the uterus (ß218, Par. 5).

At the same time, Representatives Dr. DeWith and colleagues proposed the draft of a statute for amending ß218 of the Penal Code (Federal Parliamentary Press, VI/3 137) which would have left interruption of pregnancy free of punishment in the first three months provided it was performed by a physician with the consent of the woman after medical consultation (regulation of terms).

Both drafts were considered together in the Special Committee for the Reform of the Penal Law. On April 10, 11 and 12, 1972, a public hearing took place in which all of the questions connected with the reform of the provisions governing abortion were discussed in a comprehensive fashion by experts and specialists in all relevant fields of speciality (cf. German Federal Parliament, Sixth Election Period, 74, 75, 76 Session of the Special Committee for Penal Law Reform from April 10, 11, 12, 1972, Stenographic Reports, p. 2141 to 2361). The premature adjournment of the Sixth German Parliament led to the interruption of this deliberation.

In the seventh election period the Federal Government did not introduce its own statutory draft. Instead, four drafts for a statute were proposed from the membership of the Parliament. The draft of Representatives Dr. Miiller-Emmert and colleagues contained a regulation of indications and provided in addition that the pregnant woman should, in all cases, remain free of punishment (Federal Parliamentary Press, 7/443). The draft of the SPDF and the FDPG on the other hand, suggested a regulation of terms (Federal Parliamentary Press, 7/375). In a draft of the CDU/CSUH a narrower regulation of indications was proposed (medical--which included eugenic--and an ethical indication; disregard of the penalty in the situation of non-exactability -- Federal Parliamentary Press, 7/554 --). A draft introduced by Representatives Dr. Heck and colleagues proposed to limit freedom from punishment for the interruption of pregnancy essentially to the case of a broadly-formulated medical indication (Federal Parliamentary Press, 7/561).

All four drafts were referred to the Special Committee for the Reform of the Penal Law for joint consideration. None of these drafts, however, received the required majority (cf. Federal Parliamentary Press 7/1982, p. 4). The Committee, therefore, did not think itself in a position to recommend definite conclusions to the full legislature but proposed all four drafts for decision in  separate reports--cf. Federal Parliamentary Press, 7/1982, 7/1981

(new), 7/1983, 7/1984 (new). Regarding the regulation of terms proposed by the SPD/FPD factions, which was later adopted by the Federal Parliament, the following considerations were, according to the report of the Special Committee--Federal Parliamentary Press, 7/1981 (new), p 9/10--especially decisive:

In the area of penal law the proponents of this draft suggest that we revoke the sanction for the first three months of pregnancy in the interest of improving the counseling situation. That is to say, the only duty imposed by penal law is for one to undergo comprehensive counseling and to allow the operation to be performed by a physician. Furthermore, this means that in the first three months the protection of developing life will no longer be guaranteed by a uniform penal sanction but rather by a counseling system, utilization of which will be required by a penal sanction. The supporters of the regulation of terms proceed from the premise that the penal sanction has a real effect only after the third month. It has become evident that a general criminal prohibition is not suited to guarantee the protection of unborn life. A pregnant woman who will allow her pregnancy to be interrupted will do this in any case without consideration of the penal statute. She will, in every case, find a way to obtain an abortion. The causes of the ineffectiveness of the penal provision were persuasively clarified by, among others, the experts in the public hearing who pointed out that the decision to interrupt the pregnancy has its origin in circumstances of serious conflict and is made in the depths of her personality, which a threat of punishment is not capable of reaching (Rolinski, AP VI, p. 2219, 2225; Schulte, AP VI, p. 2200; Brocher, AP VI, p. 2209). .

The regulation of terms does not abandon the idea that the unborn life requires defense and is worthy of it. The advocates of this draft are only of the opinion that the penal law, properly conceived, is not the suitable means.

In the case of an interruption of pregnancy, consultation and assistance must (and can) intervene before the pregnant woman has taken the decisive step. So long, however, as the woman must fear any penal sanction, she will scarcely seek out consultation and assistance. A woman who, for whatever reasons, wants to interrupt her pregnancy will rather either perform it herself or seek out a physician or other person whom she knows will perform the operation without asking very many questions.

So long as there is a penal provision, it is difficult to reach such women for consultation and assistance because, for the most part, they only turn to such persons for "help" whom they are certain will bring them closer to the desired interruption of pregnancy. For the most part, they do not come within reach of anyone who could or would offer them genuine assistance.

In the voting in the second deliberation of the German Parliament, neither of the drafts received the required majority of votes. Thereupon, the two party drafts which had received the highest number of oral votes were presented for decision. Two hundred forty-five representatives voted for the draft of of the SPD/FDP factions, 219 representatives for the application of the CDU/CSU faction (cf. for particulars, German Federal Parliament, Seventh Election Period, 95th Session, Stenographic Reports, p. 6443).

In the final roll call vote on the draft of the SPD/FDP faction, in the third deliberation, 247 deputies of a total number of 489 with full voting rights answered with yes, 233 with no, and nine abstained (German Federal Parliament, Seventh Election Period, 96th Session, Stenographic Reports, p. 6503).

The Federal Council designated the law which had been decided upon as needing concurrence, but denied the concurrence after a fruitless convoking of the Mediation Committee and made a timely objection according to the provisions of Article 77, Paragraph 3, of the Basic Law (Federal Council, 406th Session from May 31, 1974, Stenographic Reports, p. 214). This objection was rejected by the Federal Parliament, which did not regard this statute as requiring concurrence, on June 5, 1974, with 260 votes against, 218 votes for, and with four abstentions (German Fed-eral Parliament, Seventh Election Period, 104th Session, Steno-graphic Reports, p. 6947).

7. To support the penal law reform through socio-political measures, the German Federal Parliament on March 21, 1974, passed a bill of the SPD/FDP factions (Federal Parliamentary Press, 7/376), entitled the Statute to Supplement the Fifth Statute to Reform the Penal Law (Statute to Supplement the Penal Law Reform--SSPLR), In this statute, provision is made for, inter alia, claims for medical counseling regarding questions of the regulation of conception as well as claims for medical assistance for those abortions which are free of punishment. These services are to be provided through statutory health insur-rance and social assistance (Federal Parliamentary Press, 7/1753 and German Federal Parliament, Seventh Election Period, 88th Session, Stenographic Reports, p. 5769).

The Federal Council refused to concur in this statutory decision after an unsuccessful appeal to the Mediation Committee (Federal Council, 410th Session from July 12, 1974, Stenographic Reports, p. 324). Thereupon the Federal Government, on its own initiative, called upon the Mediation Committee. Up to this time the Committee had not arrived at any decision.

8.                                          On June 21, 1974, the Federal Constitutional Court, upon application of the government of the federal state of Baden-Wiirttemberg, issued a provisional order, according to which, inter abia, ß218a of the Penal Code in the version of the Fifth Statute to Reform the Penal Law (5 PLRS) would not, for the time being, take effect, although the interruption of pregnancy which is indicated medically, eugenically or ethically within the first twelve weeks after conception would remain free of punishment (Decisions of the Federal Constitutional Court, 37, 324; Federal

             Law Reporter, 1974 I, p. 1309). The provisional order was ex-tended until the announcement of this judgment.

II.

One hundred ninety-three members of the German Parlia-

             ment as well as the state governments of Baden-Wurttemberg, Bavaria, Rhineland-Pfalz, the Saarland and Schleswig-Holstein, according to the provisions of Article 93, Paragraph 1, No. 2, of the Basic Law and Section 13, No. 6, Statute of the Federal Consti-tutional Court, petitioned for constitutional review of ß218a of the Penal Code, in the version of the Fifth Statute to Reform the Penal Law. They considered the provision to be inconsistent with the Basic Law because the availability of abortion made possible thereby during the first twelve weeks after conception runs afoul of Article 2, Paragraph 2, Sentence 1, in connec-tion with Article 1, Paragraphs 1, 2 and 4 of the Basic Law as well as the principle of the just state. The governments of the petitioning states are further of the opinion that the concur-rence of the Federal Council was necessary for the Fifth Statute for the Reform of the Penal Law.

By way of reasoning, essentially the following is offered:

1.              The statute contains in Articles 6 and 7 amendments to the Code of Penal Procedure and to the Introductory Statute of the Penal Code and therefore to statutes which in their own right were enacted with concurrence of the Federal Council. This alone establishes the necessity of concurrence. The contrary interpretation of the Federal Constitutional Court (Decisions of the Federal Constitutional Court, 37, 363) should be reexamined.

Regardless, the Fifth Statute to Reform the Penal Law itself contains provisions which create the necessity for concurrence according to Article 84, Paragraph 1, of the Basic Law, since in ß218c, Par. 1, No. 1, of the Penal Code, there is provision for the creation of "authorized counseling centers" and in ß219, Par. 1, of the Penal Code, provision for verification of an indication by a "competent center." Furthermore, even according to the decision mentioned (bc. cit., p. 383), an amendatory statute is in need of concurrence even if in fa~t it limits itself to the order-ing of substantive questions if it puts into effect innovations in the area which lend an essentially different meaning and scope to the provisions for administrative procedures which themselves have not explicitly been amended. This necessarily leads to a requirement for concurrence in the amendatory statute, if the original statute in fact contains no provisions concerning admin-istrative procedure, although the amendatory statute encroaches in such a way on the necessary provisions for the conduct of administrative proceedings through the structuring of its substan-tive provisions that the states are committed on decisive points. This would be the case here, since only a very slight latitude would be allowed to the states in the structuring of the admin-istrative process.

Finally, according to this view, this Statute and the Statute to Supplement the Penal Law Reform must be viewed as a unity because these statutes, in the nature of the case, are from a legal point of view inextricably connected. The goal of the project of reform is a "regulation of terms with counseling"; the counsel-ing, for its part, is, however, first made possible for all the cases which are in the focal point of the reform by the Statute to Supplement the Penal Law Reform. Both statutes represented a unified political decision. It would be, therefore, contradictory if the repeal of the penal sanction and the provisions which make counseling possible would be introduced in two separate bills. Clearly, so the argument continues, this was done to circumvent the concurrence of the Federal Council, since the Statute to Sup-plement the Penal Law Reform without any doubt required the concurrence of the Federal Council. The Federal Parliament would, therefore, so this reasoning concludes, exceed the bounds of the discretion granted it by dividing the legal subject matter to be regulated into several statutes.

2.                                         The fundamental right guaranteed by Article 2, Para-graph 2, Sentence 1, of the Basic Law, as the most fundamental and most original human right, protects, in comprehensive fashion, unborn life as well. This conception of the law is in agreement with the history of its origin and with dominant opinion, is in the tradition of German legal thinking, and can find support in the literal wording of the constitution. Above all, however, only this view of the law does justice to the recog-nizable function of a constitutional norm.

Article 2, Paragra