Judge scandal shows impossibility of legalizing abortion in Germany

On Friday, the German parliament had to call off the election of three constitutional judges due to the pro-choice stance on abortion held by one of the candidates. The case demonstrates how explosive the topic remains, even in a secular country like Germany.

The majority of Germans are in favour of decriminalizing abortion, as polls repeatedly show – an attitude that reflects an increasingly secular society. However, women who wish to terminate an unwanted pregnancy are still left in a legal grey zone.

According to the German Criminal Code, terminating a pregnancy is illegal. However, no punishment is issued if the operation is performed within the first twelve weeks and if the patient complies with certain requirements, such as attending a pregnancy counselling centre.

Time and again, this situation has been challenged. One critic was Frauke Brosius-Gersdorf, a German law professor at the University of Potsdam who was high on the list to be elected as constitutional judge – at least that was the wish of the Social Democrats.

Brosius-Gersdorf gained national attention in 2024 as a member of a government-appointed commission that recommended decriminalizing abortion during the first 12 weeks of pregnancy.

She argued that this would "take into account the fundamental rights of pregnant women, above all their right to privacy". She also suggested that the constitutional guarantee of human dignity should apply only after birth, a view that has sparked significant controversy, even though the existing law allows abortion after the 12^th week if the mental or physical health of the woman is at risk.

Pro-life groups outraged

As soon as Brosius-Gersdorf was nominated, various conservative “pro-life” groups started to campaign against her, among them the “Christdemokraten für das Leben” ("Christian Democrats for Life"), who called on the Christian Democratic Party not to support the candidacy.

This group was founded after reunification and influenced the decision that the new common law for united Germany would essentially be the West German law. As early-stage abortion had been legal in East Germany since 1972, this meant that all East German women suddenly found themselves stranded in the West German legal grey zone.

The 2024 initiative that brought Frauke Brosius-Gersdorf into the limelight was a joint effort by members of the Social Democrats, Greens, and Left parties. One controversial proposal was to eliminate the mandatory reflection period before an abortion. In the end, the draft bill did not find a majority in parliament and it is highly unlikely anything similar will pass the Bundestag, in front of which anti-abortion activists protested against Brosius-Gersdorf on Friday.

They no longer need to protest. The conservative faction leader, Jens Spahn, suddenly announced “significant doubts” about her academic integrity. According to Spahn, plagiarism hunters found “23 suspected instances of collusion and source plagiarism” in her doctoral thesis. While other plagiarism hunters consider the accusations to be weak, the Social Democrats speak of a smear campaign.