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A pro-choice activist in Berlin
A pro-choice activist in Berlin on International Women’s Dayvia Twitter (@ProChoice_EN)

Germany’s slow path toward changing abortion laws from the Nazi era

The fight to liberalise outdated abortion laws is raising questions about privacy and information rights

Imagine that you’re a doctor in Gießen, a town in the mid-German state of Hessen with a population of about 88,000. Among all those people, you’re the only one who provides abortion services. You hire someone to revamp your professional website and make sure potential patients know about what kind of medical services you offer, and next thing you know you’re being hit with a €6,000 fine for violating Paragraph 219a of the German Penal Code. That’s what happened to Kristina Hänel, a Gießen doctor who suddenly found herself in the middle of a vicious debate around abortion rights, the right to information, and an increasingly dizzying battle over who has claims to privacy.

THE CURRENT LAW

Abortion is not actually legal in Germany, as is stipulated by Paragraph 218 of the German Penal Code. However, there are certain exceptions where someone pursuing an abortion is exempt from being prosecuted. These include if a woman seeking an abortion before the 12th week has gone to a state-approved counseling centre to be informed of “all of her options”, including carrying the pregnancy to term. Before a woman can go to a doctor for an abortion, she needs a ‘confirmation of attendance’ from a counseling centre and has to undergo a waiting period of at least three days. Otherwise, she could go to jail.

This often leads to the loss of valuable time: depending on where you live, your closest counseling centre might be booked out months in advance, which might force you to go to a conservative centre like Donum Vitae, where some women reported being pressured to continue their pregnancy. The only doctor in your area could have no appointments available within the next four weeks, and all the while, the clock keeps ticking. Finding the right doctor can be another hurdle, because thanks to Paragraph 219a, doctors are prohibited from “advertising” abortion services. This also means that with a restricted access to information, women searching online can often land in some scary places, such as www.babycaust.de, the site of the prominent anti-abortionist Klaus Günter Annen, who compares the current fight for abortion rights with the Holocaust. The horrific irony regarding Paragraph 219a’s Nazi-era origins seems to have been lost there.

Paragraph 219a, the section within the Penal Code that defines the criminalisation of abortion and its exceptions, has been around since 1933 and is firmly rooted in totalitarian ideology. When the Nazis came to power in Germany, abortion was criminalised (since it was an attack against the propagation of the ‘Aryan race’) and anyone providing abortion services was swiftly prosecuted. Within the Reich’s Penal Code was a clause that clearly stated that anyone “who publicly offered their own services or the services of others in promoting or carrying out abortions would face a fine or a prison sentence of up to two years”. After 1945, the law stayed on the books in the Federal Republic of Germany, and after reunification in 1990 it was included in the new country’s Penal Code (which came as a shock to women from former East Germany, where abortion laws had been more flexible).  

So, when the aforementioned Hänel’s new website offered a downloadable PDF with information about what kind of abortion services she provides, she was in violation of the Paragraph. The whole thing might have flown under the radar, but she had the misfortune of attracting the attention of one of Germany’s most notorious anti-abortion activists – the mathematician student Yannic Hendricks, who likes to spend his time reporting on doctors who have abortion information on their websites. Under the pseudonym “Markus Krause,” he has given interviews about his propensity to comb through the internet in search of doctors who are violating Paragraph 219a on their professional websites. He told the German outlet taz in April 2018: “I think I’ve made about 60 to 70 reports. It’s kind of my hobby.”

WHO HAS CLAIM TO PRIVACY?

At first, Hänel wasn’t too concerned when she got the first notice in 2015; “I thought it would be suspended,” she tells Dazed. And initially it was. The prosecutor decided to drop the case, but that was unacceptable to Hendricks, who pushed for a trial. In August 2017, Hänel received a court summoning and was charged with a fine. At first, she was “totally shocked,” she says. “I immediately experienced a really existential fear. Those feelings of fear and shame were really prominent at first.”

But then, a sense of injustice started taking over. “This is wrong,” she asserts. “As a doctor, you shouldn’t be prosecuted for giving information. Other doctors shouldn’t experience what I’ve experienced.” She made her fight public, and met other doctors who had been reported by Hendricks, including Nora Szász and Natascha Nicklaus, who also refused to back down and be shamed into silence. “Why should we conceal the fact that we provide this service?” Szász said in a German media interview. “I’m noticing that abortions are once again becoming something that are supposed to be done in secret: don’t give information about it. Don’t write about it on your website. Don’t show that.”

The doctors began garnering support both off and online, including from Kersten Artus, a journalist and chairwoman of Pro Familia Hamburg, a counseling centre that – in contrast to other state-approved centres – supports freedom of choice and has been vocal about its disapproval of Paragraph 219a. Hänel is now determined to take her case to the Federal Constitutional Court, and she’s recently released a memoir about her ordeal.

“Everything that blocks information is bad. It interferes with women’s sexual and reproductive self-determination”

Although Artus isn’t a doctor, she’s also experienced the wrath of Hendricks – or better said, of his lawyers, who are no strangers to high-profile lawsuits: law firm Höcker famously represented the Turkish President Recep Tayyip Erdoğan in a defamation lawsuit against the German comedian Jan Böhmermann in 2016, and is also known for representing AfD members. Although Hendricks has made it his personal crusade to report the names of as many abortion providers as possible, he’s consistently insisted on his right to anonymity; a demand that came to a head in November 2018, when BuzzFeed Germany reported on Hendricks and used his name, and promptly sued them in response.

But BuzzFeed won the case in January, with the media organisation’s lawyer stating: “Mr Hendrick’s reports have dragged doctors (...) into the public eye. But he wants to be protected by anonymity and act in the shadows.” The court’s decision reflected the fact that Hendricks’ actions, including the push to get Hänel prosecuted, has made him a figure of public interest. Yet Hendricks is not giving up, and has appealed the decision, in addition to being embroiled in further lawsuits such as the one against Artus.       

Artus explains that she wrote Hendricks’ name in a tweet last year, and then promptly forgot about it until several weeks later, when she got a cease-and-desist letter from the law firm Höcker that also demanded she cover attorney expenses. Her court case, which was scheduled for February, had been pushed to March 15 as Hendricks has expanded his claim against her. She reportedly commented on a tweet featuring a picture of him, which Hendricks’ lawyer argued was “shaming his client”. A judgement will be announced on April 26.

The ironic thing is that the name “Yannic Hendricks” has been setting German social media abuzz for months now. People on Twitter are joking that the “Streisand effect” – the phenomenon in which the attempt to hide information only further publicises that information – should be renamed the “Yannic Hendricks” effect. There’s even a Wikipedia page about him now. For Artus, it’s emblematic of how “absurd” the whole thing is – and how in the end, it’s not about respecting privacy rights but about intimidation. “This is really a characteristic of these anti-abortionists who engage in these absurd debates about unborn life and who want to dictate over our bodies,” she says. “Now we’re supposed to be silenced.” She thinks that the lawsuits are not doing Hendricks any favours, either: “If he really cared about his privacy, he would withdraw from all of this and then maybe he’d have his peace.” Through his lawyer, Hendricks declined Dazed’s request for an interview.

THE RIGHT TO INFORM

As the discussion around Paragraph 219a began to bubble over from a combination of vocal activism from doctors and supporters and the Hendricks/BuzzFeed trial, the German government was feeling the pressure to do something, including from oppositional parties such as the Green Party and the Left. On February 6, the Federal Cabinet decided on a reform of the Paragraph 219a, which stated that doctor’s websites were now allowed to say that they performed abortions. Giving any other kind of information, including what type of abortions were performed, was still illegal though, and it still needs parliamentary approval.

For Hänel and Artus, this reform is a reform in name only. “This isn’t a solution, it just cleared the way for pro-life activists,” Hänel says, noting that before, the definition of what constituted “advertising” under Paragraph 219a was at least at the discretion of individual judges. Now her website is clearly in violation, because she informs about different abortion methods. Artus also tells Dazed that the reform did nothing to help women gain access to information. Doctors still can’t say what kind of abortions they perform. “For example, there are doctors who still perform curettages. That’s an abortion method I would definitely not recommend. This is all necessary information,” she explains. Between trying to find information, booking appointments at counseling centres and finding the right doctor – who might be kilometres away – valuable time passes. “Everything that blocks information is bad,” Artus says. “It interferes with women’s sexual and reproductive self-determination.”

Hänel also explains that it doesn’t change anything about the insulting perception of women that the law continues to propagate: “This concept of ‘advertising’ implies that women let themselves be swayed into an abortion through advertisement and that doctors advertise in order to perform more abortions,” she says. For her, that represents “a distrust of women and a distrust of doctors.” Paragraph 219a simply “does not belong in the Penal Code,” she says, because when women are in a situation where they want to have an abortion, “they need help, and nothing else. And it makes no sense to further beat these women down.” The real fight, of course, would be to go straight to the source: Paragraph 218, but Hänel says “Germany isn’t there yet.”

The debate around women’s rights to access abortion information, and doctors’ rights to provide it continues, as well as the question of who ‘has the right’ to be informed. Then, there’s also the question of who gets the right to privacy, especially when you’ve been the cause of privacy being revoked from someone else, as can be argued Hendricks did to Hänel, Artus, Szász, Nicklaus, and dozens of others. And then, there’s the question of whether the media has the right to inform the public about someone like Hendricks, who has been central to the renewed attention to Paragraph 219a but has been demanding his name be kept private, even when it’s already all over the Internet.  

ON-THE-GROUND MOVEMENT

It’s a total legal labyrinth, where language mystifies, where cases go from appeal to appeal, and the fight for a subclause both illuminates and conceals the overarching system of reproductive restriction. Thankfully Hänel, Artus, and the dozens of other doctors and activists facing these legal hurdles are not alone, and supporters have been rallying around them. Pro Familia and the Bündnis für Sexuelle Selbstbestimmung, a prominent pro-choice organisation, have been active in organising rallies and raising funds for doctors’ and activists’ legal fees. In late January, thousands protested against Paragraph 219a in over 30 German cities, and on March 8 – International Women’s Day – Hänel was honoured for her activism by a local chapter of the SPD party in Ostallgäu. The opposition parties in the German government, consisting of the FDP, the Green Party, and the Left, are planning to file a suit with the Federal Constitutional Court.

But for the ruling coalition, it appears that the reform of the Paragraph seems to have concluded the issue. And with doctors still being charged with violating Paragraph 219a and legal fees racking up as so-called “life protectors” like Hendricks and Annen continue their crusade, , it can feel like doors keep shutting.