“An End to the Debate on #218 of the German Criminal Code”(1974)
A translation of Robert Spaemann, “Am Ende der Debatte um § 218 StGB,” in Grenzen: zur ethischen Dimension des Handelns, 352-60 (Stuttgart: Klett-Cotta, 2001). The article originally appeared in Zeitschrift für Rechtspolitik 7 (1974): 49-53.
Explanatory comments by the translator in the text below have been italicized and placed in angle brackets.
The debate about section number 218 of the German Criminal Code draws near to its end. By now almost all possible arguments and counterarguments have been brought forward. We foresee that once the tempers of all factors are moderated and only the argumentative status of the discussion is considered, then a conspicuous ascendency of the opponents of a limited approval of abortion will appear. This shall be accounted for in what follows.
At the beginning of the 60s the Social Democrat lawmaker Adolf Arndt explained the intermittent liberalization of abortion, especially on social grounds, as the “social indication,” a capitulation of the welfare state, which by the approval of killing of human life shows itself unable to maintain itself to face a different crisis. Since that time no new circumstance has occurred and no new facts have become known that were unknown to Adolf Arndt and would have disabused him of this. How has the situation changed, such that the question has been posed anew?
I. No Emancipation without Solidarity
The public mood has changed. The new mood is best characterized by the word “emancipation” that is currently on everyone’s lips. The value of this mood is ambivalent, as is the case with all moods. The demands of human beings for individual satisfaction have arisen. The critical appraisal of all traditional, moral, and institutional bounds of such satisfaction has arisen. The “end of modesty” is proclaimed. The sensibility for injustices in the distribution of life’s opportunities, burdens, and compensation has arisen. The disposition to give additional bodily or spiritual assistance to the disadvantaged and socially marginalized groups has arisen. However, at the same time the propensity for brutality against all who stand in the way against individual demands has arisen. And since these individual demands are often different, the emancipatory consciousness swells greatly. There is no emancipation without solidarity. But often this is only another word for hedonism, for the pursuit of individual lust-maximization. But hedonism has ever had a penchant for brutuality, from the Greek sophist Callicles to the Marquis de Sade to the murderer of Sharon Tate. He indeed knows a certain solidarity, but only the solidarity of enjoying and savoring. Whoever is no possible partner in the community of savoring is neither of service to this community nor loved by it. The bulk of the days of Adolf Arndt stood under the impression of the crimes of National Socialism. The memory has faded, and the respect for life has sunken since then. Terrorism is a part of normality. Interventions into automobile traffic—speed limits, for example—push on the public a severe absurdity if they are meant to serve the lessening of commute times. In opposition to this is found a peculiar alliance of conservatives, who wish for no regulation of primordial freedoms (nor those who wish to make fast cars), of technocrats, to whom the most important things is the unhindered flow of traffic, and of “emancipationist” Liberals, who wish to see a joy brought to the citizens—namely, the joy of rushing.
It seems to me that one must see the abortion debate in this context. It is characterized by a heightened sensibility towards situations of individual frustration and distress. But in the case of the decision between the right to life of those whose voices have not been made audible in the democratic choir, and the right to unhindered self-development and pleasure in life of those who are already “established,” the unmistakable bias points towards the former of the two positions. It should not be forgotten that at the beginning of the debate stands the brutal slogan: “My belly belongs to me.” (To whom does it actually belong at the moment of conception?) And it should not be forgotten that those ladies who resorted to the extortionate medium of collective self-display belong to the establishment and absolutely not to those the needy poor in society, who are suddenly the only ones spoken about.
Yet the debate has done some good things. It has drawn attention to a sore spot. The Church was actually the first to realize these problems and implement programs to assist embattled expectant mothers—programs not present to the same extent prior to the debate. And on the other side the initial brutal public slogans have disappeared. These are results that must be preserved.
But above all, after the debate no one can now doubt that unborn children are human beings. We were not even able to do so in the Middle Ages. The papal declaration of the 16th century that in the second month after conception God created the human soul and sent it into the body is indeed readily invoked by supporters of abortion on demand. But they thereby hold papal utterances, particularly ones dating back a long time, as more infallible than Catholics do, who for questions of biology consider biologists and doctors as rather more qualified. These scientists, however, are already in agreement that the development of the human organism is strictly continuous and follows the genetic code, so that every limitation of the beginning of “humanity” would be arbitrary. To grant to the state, as Thomas Hobbes would, the right to arbitrarily determine who is human in the legal sense and who is not, means to take from human rights their character as fundamental rights. Indeed, the state could at any time restrict, by the particular definition of human being it adopts, who may lay claim to these rights. Whoever in this case actually joined in and represented part of the people could alone reserve to himself this right to life.
That the step to euthanasia from here is no more principled cannot be contested. The analogy is occasionally labeled as demagoguery, but nothing substantial can be argued against it. The euthanasia debate has meanwhile already begun. Eugenic indication is already such a first step: we judge which lives are worthy to live and which are not—and on the basis of many more doubtful criteria, we judge the killing of the already born. To hinder the birth of a handicapped child, one must abort the more healthy. The damage from a mother contracting Rubella only affects about every sixth child! The philosopher Julius Ebbinghaus, who in the 50s not only pleaded for the adoption of the death penalty but also for the legalization of abortion, was consistent in his argumentation. He thought that no one has a right to life who cannot assert himself as a conscious member of the human community of persons (thus neither children nor the mentally ill). Even the killing of children after birth is not opposed to principles from the standpoint of human rights. Behind this stands the ideal of the person—not advocated by Kant, by the way—as equivalent to self-consciousness. We rightly recoil from all such consequences. Either a human being is a human being by biological membership in the species, or he is one only by a particular rank actualized intellectually. But then a newborn nursling is less entitled to protection than an adult sheep dog, with which an undoubtedly higher level of communication is possible. However, if we do not want such a limitation of human rights, then we cannot justify that entirely arbitrary three-month limitation, at any rate. <under the German abortion law put in place around that time, abortion was made legal in the first trimester>
II. Abortion on Demand
The insight that human life has a right to legal protection from the first moment of its existence has, as I said, grown so large in the course of the debate that the votes on this have been to lessen that which is, in a nutshell, left up to the self-determination of a woman. Therefore, the proponents of abortion on demand have for some time been placing other aspects in the foreground. They say: 1) the penal protection <of unborn life> would be ineffective, the number of undetected cases <of abortion> enormously high, 2) women would be dragged to “back alley abortionists,” and deceived about the severe hygienic damages of it, 3) laws that would not be enforceable would detrimental to the rule of law, 4) keeping abortion illegal would privilege those women who are capable of leaving to procure abortion in a foreign country, 5) decriminalization of abortion would open up the possibility for women to be counseled before abortion and eventually even dissuaded from their intentions, 6) unwanted children face a dangerous fate. They make up a great portion of criminals.
All these reasons have indeed not withstood the opposing arguments as they have been brought forward point by point. In my view of the discussion, the proponents of abortion on demand have not fundamentally grappled with the arguments of those opposed nearly as much as their opponents. They have simply repeated their initial arguments, and have thus not responded to those having been brought forward in the meantime. The basis for this must doubtless be seen in the fact that these counterarguments were substantially convincing. They only have the choice of allowing themselves to be convinced by them or to ignore them as far as possible. If a pure defiance against wanting to be proved right should not count for much in legal decision-making policy, then as the state of the discussion appears to me, abortion on demand must fall.
The counterarguments that have been brought forward by doctors, jurists, psychologists, and philosophers against the aforementioned six reasons may be summarized thus:
1. The ineffectiveness of legal protection is not proven, and in fact foreign experiences show with a limited assurance the probability of the contrary. Thus in England the rate of legal abortion rose from 7000 in the year 1964, before the approval, to 156,000 in the year 1972–and this without having lessened the number of illegal ones in an approximately comparable magnitude. The obligatory “consultations” must, when faced with this number, degenerate into a farce. <Many countries, including Germany, try to “protect” the unborn child by requiring that the mother undergo a pre-abortion counseling or consultation concerning the gravity of the decision.> With legal abortion, women with multiple children are in the minority. On the other hand it appears to be bad for the teenager who is sixteen, seventeen, or eighteen. Loathing and moral dilemmas grow in the clinics if with this change the cancer sufferer cannot receive timely treatment. In the Eastern bloc these conditions after the legalization of abortion led to new restrictive measures. The criminal laws would be effective, if they were used, as shown in Romania, where the exorbitant abortion numbers after the return of “criminalization” markedly decreased. That does not fundamentally constitute a return flight into illegality, as it is obvious that after the return of abortion laws the number of births tripled in a year and a half.
<According to Wikipedia, that font of unverified knowledge, prior to abortion being outlawed in Romania in around 1967, 80% of pregnancies ended in abortion. A “massive baby boom” then followed Decree 770 which outlawed abortion. Since the fall of the Communist regime there, abortion was again made legal. And, again, the birthrate has plummeted to well below the rate for societal replacement.>
Finally, the proponents of abortion on demand overlook one assuredly valid insight from the sociology of law, namely the norm-building power of criminal sanctions. This is especially valid for secular societies, in which the norm-building power of religion has waned. Here the criminal law applies to a great extent as a limit, which fixes the “ethical minimum.” Not to leave the criminal law in the hands of the woman is a buttress, and often the only one, against the pressure around the progenitors urging them toward abortion. This function alone would already be enough to render the abolition of the protection paragraphs irresponsible. Naturally the protective effect of the criminal law can be decreased by irresponsible public propaganda. But if human life is legally protected from the beginning, why should one then capitulate before the propaganda campaign instead of ignoring it?
2. The injury to the health of the woman at the “back-alley abortionist” would only be a striking argument if the life of a child in the womb were not a human life. Thus it cannot be the chief duty of the lawmaker to make this killing free of all possible risk. The health consideration could only come to bear if and when it does not oppose the health consideration of the protection of innocent life. However, one does not need to quarrel over this, for in reality things stand in such a way that with an increase in the rate of abortion, as it is legalized, the rate of health injuries will simultaneously rise. A statistic from New York calculates a complication rate of 10.1% in regard to legal abortion before the 12th week of pregnancy. A statistic of the Gottinger Women’s Clinic indicates the rate of permanent damage at 30%, a statistic from Budapest at 36%. Together with the fact that no general diminution, but a rather an elevation of the abortion rate is expected, this means that healthcare policy does not advocate for abortion on demand.
3. Just as unconvincing is the argument that the rule of law would be shaken by the higher number of unreported cases of abortion. First of all, the given numbers are controversial. But that can be left aside here. One is at least already certain at the moment, namely that the number of abortions would soar from the massive public campaign, after they had previously sunk due to the dissemination of the birth-control pill. The campaign also has contributed the destabilization of state attorneys and judicial appointments. If similar conclusions to those involved in this propaganda were to be deduced from the claims of “consequences,” they would draw near to placing the role of the fire department into the same fire.
<The former sentence is not so clear to me, and I would welcome a better translation if anyone has one. I believe what Spaemann means that the legally established presence of fire departments might, in a similar vein, lead to a higher number of unreported cases of fires, since the involvement of a fire department in a fire would also introduce legal consequences for the fire. That this is constitutes no serious argument against establishing fire departments is Spaemann’s point.>
But with regard to the argument, as it is already often objected, why not then declare warehouse thefts of up to 100 DM <German money, prior to the Euro> exempt from punishment, in regard to which the estimated number of unknown cases is known to be just as enormously high? Is an unborn child not worth at least 100 DM? Is the protection of property more important than the protection of life? Recently the high number of unreported cases of child abuse has been just as often pointed out–however, not with the intention to establish a legal right to abuse children. Here it was instead with the meritorious intention, among others, of televising this problem to reduce these cases, on the one hand by the enlightenment and moral influencing of the perpetrators, on the other hand by the valid appeal to the neighbors to report cases well known to them. There is no comprehensible reason why in the case of abortion the opposite consequence would occur. Unless the silence on this indicates that it is here not a matter of protecting a legal right, but rather it is at most a question of “good morals,” about which opinions are varied and ideologically conditioned. In reality, it is however a foundational principle of our legal order that is not up to the disposal of the legislators. What use is a strengthening of the “authority of law” if it is bought with such an abandonment of its foundation?
Besides, the line between the third and fourth month in the case of an abortion that has already occurred is generally not certifiably doubt-free. The unreported number of cases will remain with abortion on demand.
4. The same begging of the question, i.e. the tacit assumption of what must first be proven, lies in the suggestion of discrimination against less wealthy women. The tacit assumption in this would be that abortion is not illegal. Then and only then would this assumption comprise an argument. Namely, it could never be discrimination if someone is prevented from committing a crime. One can only attempt to abolish a privilege that is already permitted. But unfortunately the rich criminal is always privileged as opposed to the poor. His possibilities to commit crimes and to elude legal punishment are greater, since all his possibilities are greater. For this reason richness itself could be opposed as unfair privileging. The demand that there should be equal opportunity for the committal of crimes by establishing the legalization of them is indeed entirely new. Were this a justifiable demand, then embezzlement should be made exempt from punishment, because in light of its nature as a white-color crime among the upper strata, its “criminalization” is discriminatory against those having fewer opportunities to remain undetected during embezzlement. Thankfully this logic is not followed where it is a question of money, but rather thought is directed to opposing the possibility for white-color crime.
5. As concerns the limited possibility to counsel expectant women without pressure and thereby dissuade them from abortion, the English example has shown (from the massive rush to abortion clinics) what this counseling will be: a pro-forma consultation. The possibility of counseling currently exists. Before a woman goes to a “back-alley abortionist,” she usually goes to a real doctor in order to determine whether she is actually pregnant. If he wishes, the doctor can rather easily figure out whether the woman wants the child or not. However, to get her in a frame of mind to accept a child that she initially does not want, requires—more often than not—a repeated conversation. One such conversation could even now be suggested to doctors as an important duty. But it is against all life experience to expect from the brief conversation of an advisory body what one does not expect from the independent doctor obligated to silence. If, however, the debate is about the release from pressure—what pressure do they wish to eliminate? The pressure of irresponsible procreation will naturally increase with the legalization of abortion. The woman who is not willing to abort will be robbed of that possibility, with respect to which the laws and the risks of illegality are directed. What is worse: the pressure of an environment for the killing of children, or the pressure of laws in support of life? The question answers itself as it is asked.
6. Finally, as regards the fate of unwanted children, experience teaches that by far most children, at whose conception the parents initially react with terror and resistance, will be fully adopted after their births by their parents (or sometimes even by their grandparents). Abortion appears to many today as a way which is not at all to be taken into consideration. These numbers would naturally be fewer if the law liberalized abortion in a spectacular way. However, in the first three months a prognosis about the future fate of a child is almost always impossible. But above all: the hedonistic calculus “better to kill a life than to make him go his way with burdens” would have prevented many noble and excellent human beings from existing. Should no example from the Social Democratic Party come straight to mind thereby? And should they put into effect that surrender of the legal and social state of which Adolf Arndt spoke?
The debate had the good aspect of sharpening the awareness of the suffering of mothers and children. The willingness to render assistance has grown. The willingness will once more vanish if the assistance for “supporting measures” is downgraded for the sake of abortion on demand. In the end, a more comfortable, cheap, and brutal way will have been chosen, if abortion on demand becomes an option.
III. Retreat into the Conscience
Two aspects can still be mentioned, which were not, to my mind, sufficiently expressed in the debate. The first of which I must here speak concerns the common talk about the conscience of women and lawmakers. This talk is equivocal. The conscience is the voice which reminds us what is right to do. It does not replace the test to identify what is right. Our state cannot arbitrarily and individually convey to us this knowledge of what is right and what is wrong. It has certain fundamental beliefs in the foundational rights it accepts beforehand as benchmarks. If there are absolute human rights, then this means that the right of a human being may not made dependent on the conscience of any other human beings. Therefore the same insight is again in the retreat to conscience, which is hardly ever frankly expressed, but always tacitly presumed, namely that in the case of unborn children it is not a matter of human life, that on these grounds one may stand for the disposal of the will of another, provided this masquerades as “conscience.” And this very same assumption is false. Instead, the conscience is interested in recognizing those basic rights: the conscience of those nurses and doctors who are of a mind to hold to their Hippocratic Oaths. The text of the oath in the office of a doctor in Nazi times was a sure sign with which the doctor gave to his patients to recognize him as not being a Nazi. One such future doctor, the director of a women’s clinic, will not come into question <in that good way>, provided that abortion is legalized.
The second point is the following. In the eyes of many citizens of our country, abortion on demand since 1949 would have infringed on the legitimacy of a state in its foundations. The legitimacy of a modern state is based above all in its function of the protection of life. This protection does not result from a majority vote, but rather is instead what must be presumed if submission to the majority vote is asked of minority groups. Wherever minority groups lack rights, one can also not legitimize the majority. With the first legalization of abortion since 1949, the fundamental consensus on which our republic relies has been infringed upon. Numerous loyal democrats (who are used to respecting the majority decision) would be pushed to the limits of their loyalty in this case, if they consider the decision to be false. For them, with abortion on demand our state ceases to be a constitutional state. The representatives of the parliamentary majority should give some thought to this, for to bear responsibility for that is at stake here. If in spite of everything they incline toward abortion on demand or something similar, they should ask themselves whether the implementation of this goal is a value that puts to the test the loyalty of a part of the serious and benevolent citizens of our republic.
–Translated by Alexander Schimpf