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Germany: Criminal Law Amendment Allows Doctors to Inform Public of Abortion Services

(Apr. 22, 2019) On March 29, 2019, an amendment to the German Criminal Code entered into force, clarifying in a new paragraph 4 that doctors, hospitals, and other institutions may, without fear of criminal prosecution, provide objective information that they perform abortions in cases allowed under the Criminal Code. In addition, they may refer to information on abortion provided by other listed institutions, such as federal or state agencies, counseling centers, or the German Medical Association, in particular by linking to that information on their website. Furthermore, the amendment requires that the German Medical Association publish a list of doctors, hospitals, and other institutions that perform abortions and their methods, and update it monthly. (Act to Improve Access to Information on Abortions, Mar. 22, 2019, FEDERAL LAW GAZETTE I at 350, Federal Law Gazette website (in German); CRIMINAL CODE, Nov. 13, 1998, FEDERAL LAW GAZETTE I at 3322, as amended, § 219a, para. 4, Federal Law Gazette website (in German); BT-Drs. 19/7693 at 2, Federal Parliament website (in German).) Before the amendment, the Criminal Code generally prohibited offering, announcing, or promoting one’s own abortion services or the services of a third person, or disseminating such declarations in public, in a meeting, or as written material.

Background

On November 14, 2017, the district court in Gießen (Amtsgericht (AG)) in the German state of Hesse fined a doctor because she provided information on available services and the process of abortion on her website. The doctor appealed the fine, but her appeal was denied. (AG Gießen, Docket No. 507 Ds 501 Js 15031/15, Nov. 14, 2017, Jurisprudence Hessen website (in German).) The court decision gave rise to considerable media interest. As a reaction to the court decision, in February 2018, several parliamentary groups (Fraktionen) of the German Parliament (Bundestag) submitted proposals to either abolish the prohibition on advertising services for abortion, restrict its scope, or move the prohibition from the Criminal Code to the Professional Code of Conduct for Physicians or to the Act on Advertising in the Field of Health. (For more information, see Felicia Stephan, Germany: Proposed Amendment to the Criminal Code Concerning Advertising Services for Abortion, GLOBAL LEGAL MONITOR (Mar. 19, 2018).) However, as the topic remained controversial, Parliament was not able to agree on a solution until February 2019. (Parliament Votes for Revised Version of Paragraph 219a of the Criminal Code, DEUTSCHER BUNDESTAG (Feb. 21, 2019) (in German).)