or many American expats in Europe, restrictive abortion laws seem like one of those barbarities — like a lack of gun control or socialized medicine — particular to the United States in the developed West, that we have left behind. It is one of those issues that has allowed us in the UK (where abortion is freely available on the NHS for the first 24 weeks of pregnancy) to, throughout the Brexit debacle, look at the news coming out of the US and remind ourselves that things could be worse.
Only occasionally is this smug satisfaction with ourselves pierced by the reality of the situation, such as when Northern Ireland finally decriminalized abortion only last year, or when thousands took to the streets in Poland in 2018 to protest proposed further restrictions to abortion.
It came as a shock to me, then, when I learned about the state of abortion law in Germany, liberal Germany — lynchpin of the European project — with its far more permissive attitudes towards sex than us repressed Brits. Abortion rights are now under threat in Germany by the same far-right forces that have laid siege to them in the US, thanks to a Nazi law that has recently been exhumed.
The history of abortion legislation in Germany is understandably complicated.
Under Nazi rule, it was a capital offense to provide an abortion to an Aryan woman, while abortions for undesirables were actively encouraged. After the war, abortion was illegal in both East and West Germany until the East legalized first-trimester terminations in 1972.
When the West attempted to follow suit in 1974, the Constitutional Court struck down the new law, citing the human rights violations of the fetus, and objecting to specific points from Roe v. Wade from just two years before.
Upon reunification in 1990, East Germans saw their abortion laws tightened once again; a compromise was struck where people seeking abortions in the first 12 weeks were not subject to prosecution for abortion within the first trimester so long as they attend a counseling session intended to dissuade them from terminating their pregnancy and observe a 72-hour waiting period under a law titled section 218.
This time the Constitutional Court ruled that while abortion still contravened the human rights of the fetus, the constitution provides no prescription for punishment. Thus, while strictly speaking abortion was illegal, it is effectively decriminalized for people who are willing and able to jump through a series of hoops.
One of the most disturbing obstacles to abortion is the result of a Nazi-era law still on the books, section 219a, which prohibits physicians from advertising their abortion services under penalty of a fine to two years jail time. This law had been forgotten and unenforced for decades, but a spate of recent convictions has made it front and center of the abortion fight in Germany. With truly sinister irony, the resurrection of this law has meant that for people searching for an abortion provider, the most easily accessible lists of clinics come in the form of far-right anti-abortion websites, where details about abortion providers are listed to intimidate them and promote protest.
Babykaust.de is one such website. To save you from having to view it yourself, after Google translating the site into English, it appears as the inner monologue of one of those wankers who stand on main streets with placards in early internet HTML form, replete with images of fetal parts in surgical trays, or in vivo images of fetuses underscored with tacky gifs of dripping blood. Throughout the site, one is informed that the scale and horrors of abortion are on par with, or even surpass, that of the holocaust.
If it weren’t so grotesque, the site would almost border on camp. Clicking the link titled, ‘Abtreiber,’ or Abortionist, on the menu to the left-hand side of the screen, one is taken to a list of abortion providers organized by postcode and town, interspersed with more images of extracted fetuses. The purpose of the list, according to Babykaust, is to hold abortionists accountable and prevent them from denying their involvement during whatever version of the Nuremberg trials the site’s copywriter believes is coming.
And now the same activists responsible for Babykaust.de are threatening the uneasy detente that is the status quo of German abortion law by weaponizing section 219a. While it is perfectly legal for Babykaust to compile this list — in fact, the medical council’s own list provided by counselors is, honestly, based on Babykaust’s — the interpretation of ‘advertisement’ of abortion by providers has been extraordinarily strict.
All .de websites are required to provide an ‘impressum,’ essentially a disclosure of the publisher of the website and their contact details. Babykaust’s impressum lists one Mr. Klaus Günter Annen of Weinheim. His Wikipedia page refers to him as a former industrial clerk who now devotes himself to anti-abortion activism and has ties to extreme right-wing fascist groups. He is supported by a young man named Yannic Hendricks, who goes by the pseudonym Markus Krause.
These two men became the first in decades to invoke the long-forgotten section 219a when they successfully sued the GP Kristina Hänel for listing abortion as one of the procedures she performs on her website.
The backlash to this suit was enormous, and political pressure mounted until the Bundestag — the national Parliament — began to consider repealing section 219a. Unfortunately, the balance of power in the Bundestag shifted after the 2017 elections, and in joining a coalition with the Christian Democratic Union (CDU), the center-left Social Democratic Party (SDP) was forced to drop their aims of repeal. Instead, section 219a was revised in 2019 so that practitioners are now permitted to list abortion as a service, but any additional information will still run them afoul of the law.
Emboldened, Annen and Hendricks continued to file a spate of other suits against doctors, including gynecologists Bettina Gaber and Verena Weyer, who were fined €2000 because their website described their termination service as, ‘anesthesia-free,’ ‘drug-induced,’ and performed, ‘in a protected atmosphere.’ The two men are now credited with over 60 suits against doctors, all using section 219a.
While doctors Hänel, Gaber, and Weyer are all continuing to fight their cases, the victories against the plaintiffs in their cases have been minor and hollow.
In 2018, the European Court of Human Rights rejected Mr. Annen’s case against four injunctions that ordered him to stop comparing abortion to the holocaust, going so far as to state his website, ‘might also have incited hatred and aggression.’ And yet the first image on the front page of babykaust.de is still the gates of Auschwitz with their chilling inscription, Aerbeit macht frei: work sets you free. Mr. Hendricks is continuing a legal battle with the journalist Kersten Arthur over her refusal to keep his identity anonymous and refer to him by his pseudonym, although it seems like the cat is out of the bag.
In a sense, this is a very much a story unique to our absurdist times: activists with ties to the insurgent far-right comparing doctors to concentration camp commanders, while using a Nazi law to attempt to stop them from performing abortions. In another sense, it fits the global story of the threats to abortion rights in the modern age: mediocre men, bitter for having lost the broader culture war, exerting what little influence they have left by using legal technicalities to, if not ban abortion, reduce access to abortion enough to make it effectively impossible to receive.
It’s the same strategy being used by thin-lipped Republican legislators in many US states, and at the federal level, to chip away at abortion rights. 2019 alone saw nearly 60 new abortion restrictions in the States. The strategy is piecemeal, including everything from Louisiana and Texas requiring doctors to have admitting privileges at nearby hospitals (a completely unnecessary rule and an impossibility in communities where hostilities towards abortions are so intense doctors have to be flown in to provide them), to Ohio’s patently absurd and medically unfeasible law requiring doctors to reimplant ectopic pregnancies.
In March of this year, the US Supreme Court will take up the first major abortion case since Donald Trump appointed two far-right judges to the court, including Brett Kavanaugh, whose appointment was mired by a string of accusations of sexual abuses against women from his youth. Only time will tell what happens now that extremists like Mr. Annen can not only invoke the law but also interpret it.