Is West Germany’s 1975 Abortion Decision a Solution to the American Abortion Debate: A Critique of Mary Ann Glendon and Donald Kommers


Within the span of two years, the highest constitutional courts of twoWestern democracies reached almost diametrically opposed decisions on theissue of abortion. In 1973, the United States Supreme Court held in Roe v.Wade’ that the constitutional right to privacy first articulated in Griswoldv. Connecticut extended to the right to choose to have an abortion. Under Roe, the right to abortion was left unrestricted during the first three months of pregnancy. During the second trimester, until the point of viability, states could regulate abortion only to preserve the health of the woman.’ In the last trimester a state could prohibit abortion, although it was not required to do so.’ While several subsequent decisions have curtailed the broad abortion right articulated in Roe, most abortions remain legal in the United States.’

In contrast, the West German Federal Constitutional Court struck down legislation in 1975 because it failed to criminalize abortion in the first trimester. The court determined that the state has an affirmative duty to protect the life of the fetus and decided that this duty could be fulfilled best through the use of criminal sanctions. As a result, abortion became illegal in West Germany except in a set of special circumstances (or indications) set out in the law.

The existence of these two radically different decisions has spurred theinterest of a number of scholars.

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