In the Shadow of Poland’s Abortion Ban, Germany Is a Complicated Haven

But the most urgent and poignant acts of resistance to the ban have been, perhaps, the ones undertaken in secrecy. The decision by Poland’s highest court to rule abortions illegal in cases involving fetal abnormalities only officially took effect last week, but for a number of pregnant Poles its impact was felt abruptly and acutely months earlier, when the ruling was first declared. 

Already, they were navigating a medical system overrun by the pandemic. They were struggling with an abortion landscape made sparse and complicated by past restrictions, and they were waiting for appointments while their pregnancies ticked toward immovable endpoints. And then, with little notice, many of them found themselves cut off from that hoped-for recourse; in the immediate aftermath of the court’s declaration in October, many Polish doctors responded by quickly ceasing to offer abortions and cancelling previously scheduled appointments.

Before the ruling, a small number of legal abortions—roughly 1,000 a year—were still being performed in Poland, an estimated 98 percent of them in cases involving severe fetal disabilities. Afterward, would-be patients in such cases were left adrift, with no clear legal avenues for termination left to them. And, as protests have broken out in the open streets of Poland, those abortion-seekers increasingly cast their sights beyond the border, toward nearby countries with less restrictive laws. 

“We had a flood of people contacting us,” said Ann Pfautsch, a volunteer at Ciocia Basia, a Berlin-based activist group that helps Poles obtain abortions in Germany. “We had a lot of people who were sheer desperate. They didn’t know what to do.”

Poles have been traveling to surrounding countries for more accessible abortions since the 1990s, when the Polish parliament limited terminations to cases involving rape or incest; serious threats to the health of the mother; or significant, irreversible damage to the fetus. For the past 25 years, Germany has offered border-hoppers access to elective abortions in the first 12 weeks of pregnancy.

It has also given them opportunities to terminate some troubled later-term pregnancies—or even just obtain thorough information about the health of their fetuses—that have dwindled in Poland as restrictions have further tightened.

In the story of the Polish ban, Germany has been painted simply as a refuge for people with nowhere else to go. As an abortion haven, however, it presents complications. Germany may have become a port in the storm for desperate Poles, but it wasn’t all too long ago that the country was in a situation in some ways similar to Poland, with pregnant Germans crossing borders by the thousands in search of options and the German high court declaring abortion a violation of inalienable constitutional rights.

And even now, beneath the stories of progressive doctors and welcoming clinics, the country is grappling with its own increasingly aggressive anti-abortion movement and its own barriers to access—barriers more deeply rooted and harder to surmount than people, even within the country, understand. Unbeknownst to many, all abortions in Germany are still technically illegal, and have been for nearly 150 years. 

So for a volunteer at Ciocia Basia, helping a Polish person obtain an abortion isn’t just a matter of getting them across the border and to a German clinic; it also requires navigating obstacles within Germany.

“Quite often, them having an abortion is really under the radar. It’s really secret. They can’t take a week off to come to us,” Pfautsch said. But the counseling—with a German counselor—has to occur before the waiting period. So when possible, she said, Ciocia Basia works to connect pregnant Poles with counselors online.

When someone reaches out to the organization who’s already more than 12 weeks into their pregnancy, the obstacles are more formidable. “When it comes to so-called late-term abortion cases it’s very difficult to organize in Germany,” Pfautsch said. Securing an abortion in those cases often means traveling to a more permissive European country, bypassing Germany and its restrictions entirely.

The present restrictions have been in place, more or less unchanged, since 1995. They represent a compromise struck by the newly reunified German nation—a compromise that was implemented, like Poland’s current policy, as Poland and East Germany stepped out from under the umbrella of Soviet influence. The two countries emerged from those formative years with different identities in Europe’s abortion landscape: Poland as the most restrictive nation from the former Eastern bloc, Germany as a test case for a middle path.

Until then, Germany and Poland had navigated similar territory in abortion policy. Abortion was wholly illegal in both countries in the 19th century; in the early 20th century, both Germany—in the 1920s—and Poland—in the 1930s—began introducing limited exceptions to those bans. Then came the Nazis. In both Germany and occupied Poland, they carried out involuntary abortions for mothers they deemed racially unfit and forbade abortions in almost all cases for those they considered worthy of passing on genes. In the post-war years, both Poland and East Germany rolled back those Nazi policies and then kept rolling, making abortion generally available upon request by the 1970s.

For a time, it looked like West Germany would again follow the same path. In 1974, amid a wave of pro-choice activism, the legislature passed a law that would have started to shift the country’s abortion policy toward East Germany’s and Poland’s, allowing for abortion on demand in the first 12 weeks of pregnancy after counseling. But it never went into effect. 

Instead, a year later, as in present-day Poland, the country’s highest court ruled to limit access. The West German court even based its decision on nearly identical constitutional clauses to the ones cited in the Polish court’s October decision, including sections that enshrined the rights to life and human dignity.

Unlike the recent decision in Poland, however, the West German ruling allowed for continued abortions in cases involving severe fetal disability—as well as those involving health risks for mothers, pregnancies resulting from criminal acts, or another “grave hardship” in having a child. The last of these exemptions left room for pregnant Germans to seek abortions for “social” reasons beyond bodily threat. But the restrictions loomed large, especially in comparison to the allowances of surrounding countries. 

And so, at the same time that Poland was becoming a haven for foreign abortion-seekers, West Germany was becoming a country they left. By some estimates, more than a hundred thousand West Germans sought abortions either illegally or abroad each year.

That fact, coupled with German reunification, catalyzed an unexpected change in policy. Just as the West German legislature had in the 1970s, the new German parliament sought to allow abortions in the first 12 weeks of pregnancy after counseling. And just as it had in the 1970s, the country’s highest court asserted that abortion violated the constitutional rights to life and human dignity. But this time, the same reasoning led them to a different conclusion than either the West German court of 1975 or the Polish court of 2020.

“What the court says is,” explained Mary Anne Case, a professor of constitutional law at the University of Chicago who has studied German abortion policy and activism, “the important thing is not that abortion be condemned, but that it be prevented. And we’ve seen that criminalizing it doesn’t really work to prevent it. So we’re willing to give something else a try.” They decided that the legislature’s proposed counseling scheme was, in fact, constitutional—with conditions.

It “has to be directed toward life,” Case said. “It has to be directed to opening up to the woman a perspective for a new life with the child. But beyond that, the counseling was going to be government funded in licensed counseling centers, and it was fairly open-ended.”

The resulting law was a compromise between East Germany’s abortions on request and West Germany’s restrictions. It allowed for a measure of choice, but promoted birth. It sought, to paraphrase a Clintonian mantra, to make abortion safe, accessible—and rare.

In contrast to the politically powerful Catholics of Poland, German bishops embraced the expansion of abortion access within the court’s framework as “a pro-life decision,” Case told me, even going so far as to run many of their own counseling centers.

And they weren’t the only ones to discern anti-abortion victories in the policies. Over the past decade, central and eastern European countries like Russia, Macedonia, and Slovakia have sought to tighten restrictions on abortion by implementing versions of Germany’s counseling requirement and waiting period.

Despite those piecemeal imitations, however, Germany’s abortion policy remains unique in Europe. It also remains, amid all the countries creating new limitations or lifting old ones, essentially the same as it was when it was first implemented 25 years ago.

“The changes to the compromise are changes around the edges,” Case said. Some restrictions have been tightened within the existing framework. In 2009, for instance, the combined efforts of anti-abortion and disability advocates resulted in requirements for pregnant people seeking abortions in cases of fetal abnormalities, as in early-term abortion cases, to undergo more counseling that would promote birth and to observe waiting periods.

More aggressive, perhaps, have been the efforts in recent years to enforce a Nazi-era restriction on doctors publicizing information about the abortion services they offer. Anti-abortion groups have sued multiple German doctors for advertising the fact that they terminate pregnancies, resulting in several multi-thousand-euro fines. Kristina Hänel has become something of a public face for the issue; she’s now been sued three times, and has been fined a total of 8,500 euros for failing to take down information about abortion services from her website.

Those lawsuits  engendered another shift on the edges of the law. In February 2019, following a swell of pro-choice activism in response to the lawsuits, the German parliament approved a revision to the ban. Now, German doctors are allowed to publicize the fact that they provide abortions—though they still can’t mention which methods they use to do so.

A decade and a half later, “that, I think, is no longer true,” Case said. “It has not been, and I don’t see it becoming, the political and sociological obsession for the Germans as it has been for the United States,” but now “there are groups interested in abortion.”

In particular, she said, “in part through direct influence from U.S. hard-right anti-abortion organizations, the German anti-abortion movement has become more vocal and more influential.” Those activists employ some methods familiar to Americans but previously unpracticed in Germany: hosting annual Marches for Life in the capital, showing up at clinics where abortions are performed to brandish signs, and even opening misleading counseling centers that didn’t provide the certificates necessary to procure abortions.

Akin to Poland’s governing Law and Justice party, which has promoted a hardline anti-abortion stance, the increasingly popular right-wing Alternative for Germany party has campaigned on a platform advocating “the protection of unborn life” and the birth of more ethnically German babies to counterbalance the rising immigrant population. Before 2017, the party had never won representation in the German parliament. Since the federal elections of that year, it has held the third most seats of any party.

The surge in anti-abortion activism has also prompted a resurgence of pro-choice organizations and advocacy. To be certain, a Pew Research poll in 2018 found that 76 percent of Germans believe abortion should be legal in all or most cases—compared with just 41 percent in Poland, where protesters have twice mobilized on a scale significant enough to influence national abortion politics since the poll was taken. But Germany has witnessed nothing like those mass protests—on either side of the issue. 

“I just don’t think [the current activist movements] have enough political force or traction to change either the minds of the legislature or the court on the one hand, or the will of the German people on the whole on the other,” Case said. 

Kate Cahoon, who works with the pro-choice Alliance for Sexual Determination in Germany, expressed similar doubts. “I don’t think we’re likely to see a tipping-point moment soon,” she told me. But, she added, “all it takes is a right-wing populist party to come to power to mean that the situation gets worse very quickly. That’s what’s happening in Poland.”

If and when that day comes, she believes there’s a “good chance” advocates to further limit access could inadvertently awaken an impassioned protest movement like Poland’s—the kind that might finally shake Germany’s underlying 150-year-old abortion ban. 

“I think that any attempt to make the laws more restrictive would certainly backfire and work in our favor,” she said. 

For now, though, Germany remains mired in its strange balance. Various actors navigate a constant push and pull: pregnant people slip in for early-term abortions and out for late ones, doctors and anti-abortion groups battle over advertising, abortion providers retire and medical schools cease to teach the procedure, activists march and politicians campaign. But on the surface, the country appears unrippled: an abortion haven for Poland; steady; simple.