DOMRADIO.DE: The commission starts with a heavy mortgage, you announced a few days ago. What exactly do you mean by that?
dr Günther Krings (legal policy spokesman for the CDU/CSU parliamentary group): Of course, to put it mildly, the questions put to the Commission come up against the limits of our constitution. Because not only does the mother’s right of personality play a very important role, which is protected by the Basic Law, but also the protection of the unborn life, which does not only “develop into a human being” in the womb, but already “develops as a human being”, according to the wording of the Federal Constitutional Court in the still valid judicature.
In this respect, we and my predecessors did not write Paragraph 218 into the Criminal Code out of cockiness, but because the Federal Constitutional Court expressly requested it.
Now there is a commission that has the task of breaking through these constitutional limits – defined and interpreted by the Federal Constitutional Court – or at least thinking about them. This is problematic. And I also find it problematic when the Federal Minister of Justice assures us that we are not going to tackle paragraph 218. The Federal Minister of Justice was responsible for the abolition of the advertising ban, i.e. the permission for advertising for abortion, which we also view critically because it is not a normal medical intervention.
But now it is at least put to the test. This is a difficult task for the new Commission.
DOMRADIO.DE: Minister Paus at least talks about wanting to regulate this elsewhere. For them, the penal code is not the right place to regulate abortions. Isn’t that a point you can understand?
Krings: The central question is, of course, whether or not it will remain a criminal provision. Of course, there are also voices that say it should no longer be punishable. In any case, we have constitutional concerns. Now you can talk about the exact law. But even here it makes sense that essential criminal offenses belong in the penal code.
The traffic light itself proposed a single tightening of penalties in the coalition agreement, not on the subject of child protection, so we urgently suggested certain tightening. The only tightening of penalties proposed by the traffic light in the coalition agreement is to move animal welfare from the Animal Welfare Act to the Criminal Code as a criminal offence. Why is she doing that? To have a stronger signal effect. And if that applies in this area, then the traffic light should not be suspected of protecting unborn life less well. In this respect, it also has a signal effect that it is in the penal code.
In any case, the goal of some – I don’t impute this to any of the commission members because I don’t actually know them – in the Ministry of Family Affairs is to make the paragraph completely unpunishable. And that would raise the concerns I just described.
DOMRADIO.DE: Now critics say again and again that the ban on abortion in criminal law is paternalistic towards women. It stigmatizes women and doctors. Are these arguments you can relate to?
Krings: No, I’ll take it seriously for now, just like any argument that needs to be put forward in a democratic discourse has to be taken seriously. But I believe that this argument hides a very important point: It’s not about any medical intervention, it’s about killing human life. And that is also, I believe, quite clearly to be assessed according to the case law of the Federal Constitutional Court. In this respect, it has to be evaluated differently and it cannot be taken lightly. I don’t blame anyone making that difficult decision either.
But as much as the mother’s personal rights are protected, unborn life is also protected. This is a difficult and, at the time, socio-political compromise. Abandoning it now lightly can lead to problematic effects, as can be seen in America, Poland and other countries. So we just think it’s a dangerous debate that’s being reopened.
And again: in the end it is the mother who decides whether an abortion will take place or not. No one else can decide that, that’s my opinion. In this respect, it is clear that the rights of the expectant mother are clearly the focus. And the only protection the unborn life has is a relatively formalized procedure with a duty to advise where it at least has a chance to live.
That’s why you have to take it seriously and also have to say that there must be criminal consequences if you do it without advice. I think that’s correct. After all, we show the mothers how they can have an abortion if they have decided to do so or decide to do so. That’s important too. In the end, the mother has to decide. But there are certain procedural rules that must also give some protection to the unborn life.
DOMRADIO.DE: The commission, whose members were announced last week, consists of 18 experts from the fields of ethics, medicine, constitutional law, family law and public law. Representatives from church and theology, on the other hand, are not involved – and that, although the protection of nascent life is definitely a hot topic for the churches. In your opinion, was the cast successful?
Krings: No, ultimately not for the latter reason. First of all, I don’t accuse anyone of the 18 people of anything bad. I don’t even know most of them; I hope so and I assume it for your benefit that you also want to deal with the topic seriously. So I don’t want to attack anyone who has been named there.
But I think it is a problem that the church as a whole has been left out or that, in my opinion, certain ethical considerations are not reflected in the church environment. But I believe that is part of a larger basic approach of this traffic light coalition, at least that’s how I perceive it, to push the religious into the private sphere.
This is a social restructuring that is not only evident in this question, which I consider problematic. One may also take advantage of a currently difficult situation of the Christian churches – perhaps especially the Catholic Church – to push away the religious from the public sphere, so to speak. This is not good for society in the long run.
DOMRADIO.DE: Now voices are saying that the churches have gambled away their right to have a say on such issues or are no longer relevant to society …
Krings: Of course, if the number of church members decreases, the discussion is more difficult or the position of the churches is no longer so strong, that is clear. But many people in Germany are still members of one of the Christian churches. In this respect, their relevance is definitely still there.
Of course one has to take seriously what misconduct and problems there are in the churches. But I don’t think that can destroy any credibility. History and the roots of our Christian tradition are too big for that.
Other institutions, for example in the scientific field, have not always experienced glorious times and are sometimes guilty – if you think of the dark chapters of German history. Therefore, it does not exclude science either, because science eventually corrupted at certain historical times. In this respect, the argument is too simple, one makes it too easy for oneself.
DOMRADIO.DE: Should Minister Paus now get her way and should Paragraph 218 of the Criminal Code be deleted, will the Union move to Karlsruhe?
Krings: So I am not a friend of talking about constitutional or legal steps while we are still at the beginning of a political discussion, which we will conduct with all consistency and clarity. First of all, we want to win this political discussion. I’m taking the Minister of Justice at his word, who said clearly that he doesn’t think paragraph 218 should be deleted. I believe that personally, but then he has to stand his ground in the coalition.
I also don’t see how there should and/or can be a majority for the deletion of paragraph 218. And in this respect I am very, very optimistic that this criminal offense will remain for good reason – not in the sense of discrimination, but in the sense of an appropriate balance between the mother’s personal rights, which ultimately also decides, and the necessary protection of the unborn life.
The interview was conducted by Moritz Dege.
