Setting the Stage: The Theological and Legal Framework of the Abortion Debate

Although most West Germans equated the Catholic position on abortion with a unilateral condemnation, the theological framework in which Catholics approached abortion reform in 1969 was much more complex. In fact, many Catholics, including several prominent theologians, numbered among the early supporters of abortion law reform. In supporting reform, they did not repudiate Catholic doctrine; they drew upon it and catalyzed a heated theological and political debate that polarized the West German Catholic community and had long-term consequences for reproductive politics in Germany.

The Catholic Church has not always viewed every abortion as murder. For centuries, two theological traditions on abortion coexisted. Beginning in the fourth century, some church fathers advanced the theory of delayed hominization, meaning they did not believe that the fetus possessed a rational soul at the time of conception. Consequently, they did not believe that human life began at the moment of conception, and abortions performed prior to animation did not constitute murder, though they remained immoral. Only with the publication of the 1917 Code of Canon Law did the distinction drawn between the animated and non-animated fetus disappear from Vatican teachings on abortion.Footnote ¹

Yet, even the Church's clear-cut condemnation of abortion in the twentieth century is more complicated than it first appears. The modern Church permits some therapeutic abortions, based on the distinction it draws between direct and indirect abortion. The former is illicit and the latter is licit. A direct therapeutic abortion is defined as the intentional killing of the fetus to save the mother's life. An indirect therapeutic abortion is one in which the death of the fetus is an unintended consequence. For example, a woman diagnosed with aggressive uterine cancer or an ectopic pregnancy may have an abortion because it requires the removal of a diseased uterus and/or fallopian tubes. The removal is not intended to bring about the death of the fetus; it is a side effect of removing the diseased organ.Footnote ² Thus this action can be justified based on the doctrine of “double effect”: a good action that has an unwilled harmful secondary effect.

By 1969, several prominent German-speaking theologians supported a broader application of the doctrine of double effect in cases of abortion.Footnote ³ The moral theologians Bernhard Häring and Franz Böckle argued that a direct abortion to save the mother's life should be allowed if the fetus was not viable and if failure to remove it would result in serious injury or death for the mother.Footnote ⁴ Other West German theologians, such as Karl Rahner, questioned the modern Church's claim to know at what point the fetus became animated: “It cannot be inferred from the Church's dogmatic definitions that it would be contrary to faith to assume that the leap to spirit-person happens only during the course of the embryo's development. No theologian would claim the ability to prove interrupting pregnancy is in every case the murder of a human being.”Footnote ⁵ In 1971, Anton Antweiler publicly endorsed a relational approach to abortion. In an interview published in the popular illustrated journal Stern, Antweiler argued that parents—through their acceptance of the fetus, particularly by naming it—gave the fetus its place in the world. If the parents did not establish this relationship, a duty existed to discuss the legitimacy of continuing the pregnancy.Footnote ⁶

Other German theologians pointed to inconsistencies in Church policy on protecting life in order to advocate liberalization. Norbert Greinacher noted the West German Church's failures under Nazism and its postwar support of rearmament. The Canon law expert Horst Hermann stressed the inferior status of illegitimate children under Canon Law. The 1917 Code of Canon Law, in effect until 1983, prohibited illegitimate children from inheriting property. It also banned them from religious orders and the priesthood unless they received special dispensation from the Church. The Church, he argued, demanded state protection of unwanted illegitimate children, but failed to provide the same protection under Canon Law.Footnote ⁷

Abortion's status as a moral and political issue also reopened the theological and political debate on the separation of church and state. At Vatican II (1962–1965) council fathers acknowledged the separation of church and state; church members were free to formulate their own political opinions, but “guided by the dictates of a Christian conscience.”Footnote ⁸ Council fathers did not rule out all political interventions—but they disavowed the close association of church and state that typified the Konrad Adenauer Era (1949–1963), when priests held political positions in the Christian Democratic Union/Christian Social Union (CDU/CSU), and many bishops instructed the faithful for whom to vote. In 1969, the German Bishops' Conference (DBK) reaffirmed its commitment to nonintervention in the political sphere unless “the foundations of our democracy are at risk.”Footnote ⁹ For conservative West German Catholics, the proposed liberalization of Paragraph 218 constituted such a threat. As we shall see, however, most German Catholics disagreed and interpreted the institutional Church's interventions in the abortion debate as a violation of the spirit of Vatican II.

Like the ecclesial/theological debate on abortion, the legal debate on abortion in Germany had a long history, predating the formation of the Federal Republic in 1949. The 1871 penal code defined abortion as a felony punishable by up to five years imprisonment. By the late nineteenth century, feminists and some social reformers demanded support for unwed mothers, recognition of women's right of self-determination, and the removal of restrictions on abortion. These efforts occurred within the context of a broader movement to put birth control, population control, and women's rights on the political agenda. In 1926, the Weimar government approved revisions that decriminalized abortions that were performed to save the mother's life. The National Socialist government introduced two new provisions that reflected the distinction it drew between “worthy life” and “life unworthy of life” (lebensumwertes Leben). The 1935 Law for Hereditary Health approved abortion and enforced sterilization for members of so-called alien races and inferior persons, while the 1943 amendment to Paragraph 218 made abortion a capital offense for Aryan women.Footnote ¹⁰

In 1949, determined to distinguish itself from its predecessor, the new Federal Republic of Germany adopted the Grundgesetz, which established a hierarchy of rights—the most important of which was the government's duty to safeguard “human dignity” and the “right to life.”Footnote ¹¹ It also reinstated the Weimar Criminal Code, including the 1926 version of Paragraph 218, opting not to adopt reform proposals that would have decriminalized abortion in cases of rape. As Dagmar Herzog explained, abortion law reform in West Germany only became possible in the wake of “the quadruple impact of the ‘sex wave,’ the Social Democrats' ascension to participation in power in the Grand coalition (1966–1969), the rise of the student movement, and the growing popular conviction that the morality of the Christian churches was hypocritical.”Footnote ¹²

Early Interventions: Frauenaktion 218, the Vatican, and Cardinal Höffner

The changed social and political climate of the late 1960s and early 1970s did not translate into an easy victory for reformers, however. In 1969, the government-appointed commission presented two models for reform. The majority recommended the Fristenlösung, which decriminalized abortion in the first trimester. A minority of the commission recommended an Indikationslösung that prohibited abortion unless certain indications existed, such as rape. The two reform models quickly spurred a heated public debate. The Christian churches, particularly the Catholic Church, and the West German medical community spearheaded the fight against the Fristenlösung, mobilizing their respective communities.

In the early battle against reform, Catholic and Protestant opponents joined forces. On December 10, 1970, a group of Catholic and Protestant writers collaborated on the brochure Das Gesetz des Staates und die sittliche Ordnung, which condemned abortion as murder. Cardinal Julius Döpfner, chair of the German Bishops' Conference (DBK), and Bishop Hermann Dietzelbinger, Chair of the Council of the Evangelical Churches in Germany (EKD), coauthored the foreword for the brochure.Footnote ¹³ Other Catholic organizations, such as the Central Committee of German Catholics (ZdK) and the League of German Catholic Youth (BDKJ), also issued condemnations.Footnote ¹⁴

Although the liberal press and some prominent Protestant and Catholic theologians criticized these religious ventures into secular politics, West German politicians reacted cautiously. With national elections approaching, they feared antagonizing the churches. In 1971, Justice Minister Gerhard Jahn (SPD) announced his support for the “indication solution.” Immediately, the chief editor of Der Spiegel, Rudolf Augstein (a former Catholic) attacked Jahn and the Christian churches, particularly the Catholic Church: “Whether a two-month-old embryo is a ‘someone’ who already can have the right to its nascent life, is now the controversial question that the Minister, at least, has decided in agreement with the pope.”Footnote ¹⁵ Augstein also accused Jahn and other politicians of prioritizing election results over women and families in crisis.Footnote ¹⁶

The medical community also expressed reservations about reforming Paragraph 218. On June 24, 1971, the Association of Established Doctors in Germany declared that “every abortion is a destruction of new life and thus an act of killing.” They warned that an abortion should not be likened “to the removal of an appendix or blastoma.”Footnote ¹⁷ Similarly, the president of the Professional Association of Gynecologists opined, “In our opinion, the doctor's obligation to weigh meticulously the risks (i.e., the indications) must be preserved; in accordance with this obligation is the right of professional freedom, which can never be qualified or coerced.”Footnote ¹⁸ Given the upcoming national elections and the opposition of the medical community and the churches to the Fristenlösung, it was not surprising that many SPD and FDP politicians wavered in their support.

Efforts by politicians to place abortion law reform on the back burner until after the 1972 election nevertheless failed. On June 3, 1971, a coalition of three grassroots feminist organizations from West Berlin, Frankfurt, and Munich (Sozialistischer Frauenbund Westberlin, Frankfurter Frauenaktion 70, and Münchener Weiberrat) launched a national campaign of self-incrimination, modeled on a 1970 campaign in France: 374 West German women, many of them celebrities, announced in Stern that they had had an illegal abortion:

Liselotte Funcke, vice president of the FDP, numbered among the signers. That evening, Funcke and Maria Henze (CDU) debated abortion reform on national television.Footnote ²⁰ Shortly thereafter the Infratest Politik-Barometer from March/April 1971 printed the results of a survey on German Catholic attitudes about abortion. Of the 2,000 Catholics polled, 51 percent believed that women should have the right to terminate a pregnancy. The number rose to 70 percent if extenuating social or economic circumstances existed. It increased to 80 percent in cases where a high probability existed that the child would be born with serious mental or physical disabilities. Despite official Church condemnations, most West German Catholics supported broader parameters for legalized abortion.Footnote ²¹ Within one month of the Stern article, reformers had collected 90,000 signatures in support of the abolition of Paragraph 218.Footnote ²² The abortion debate had the undivided attention of the West German public.

Sensing a shift in momentum, pro-life Catholic organizations launched a counteroffensive. In July 1971, the Association of Young Christian Workers (CAJ) and the Munster diocesan youth community wrote an open letter that criticized the “dishonest and manipulative methods” of Stern, Der Spiegel, and Aktion 218.Footnote ²³ Similarly, in North Rhine-Westphalia the CAJ attacked Stern for “celebrating a series of celebrities as saints because they killed living human beings.” The CAJ also wrote the West German chancellor and the leaders of the CDU, the SPD, and the FDP to declare their opposition to reform.Footnote ²⁴ Several chapters of the Katholische Frauengemeinschaft Deutschlands (KFD), the largest women's group in West Germany, also pursued letter-writing campaigns and petition drives, as did smaller Catholic groups such as the Lady of All Nations.Footnote ²⁵

The German bishops and the Vatican also entered the fray. In a pastoral letter, Cardinal Jaeger of Paderborn characterized efforts to abolish Paragraph 218 as the “new euthanasia program.”Footnote ²⁶ Cardinal Julius Döpfner, Chair of the DBK (1965–1976), admonished the SPD for prioritizing women's interests over the life of unborn children.Footnote ²⁷ No Catholic intervention aroused as much controversy, however, as those of the semiofficial Vatican newspaper L'Osservatore Romano and of Cardinal Joseph Höffner of Cologne. On February 12, 1972, the Vatican newspaper published an article on the proposed liberalization of West German abortion law. The article began by reiterating remarks made by Pope Paul VI on January 13, 1972, in connection with the Italian abortion debate: “It is only a small step from legalized abortion to sterilization and from there to the elimination of ‘unworthy life.’” It then suggested that the West German government had placed “indirect and direct pressure” on some individuals to be sterilized.Footnote ²⁸

The Apostolic Nuncio in Bonn quickly issued a disclaimer, stating that the comments represented the views of the author, not the Vatican. The German press challenged the disclaimer. The Hamburg newspaper Die Welt pointed out that the statement appeared without a byline. The most likely author, therefore, was the chief editor of the Vatican newspaper, who answered directly to the Vatican State Secretary.Footnote ²⁹Die Welt also reprinted the L'Osservatore Romano article in German translation. Other German editorial columns lambasted the Vatican for stooping to such low tactics and questioned the appropriateness of any religion that would make a political intervention in a pluralist society.

On February 21, 1972, Cardinal Joseph Höffner added fuel to the fire. In an interview with the Catholic News Service (Katholische Nachrichten-Agentur, KNA), Höffner described any legislator unwilling to safeguard the sanctity of life, including that of the unborn fetus, as unelectable by observant Catholics. The Düsseldorf State Secretary Dr. Ulrich Klug (FDP) called Höffner's comments “an attempt at political coercion.”Footnote ³⁰ Bundestag member Lenelotte von Bothmer (SPD) described them as “a despicable, undemocratic incitement.”Footnote ³¹ Heinz Kühn, the SPD Minister of North Rhine-Westphalia and a former Catholic youth group member, accused the bishop of trying to exercise undue influence over the political decisions of Catholics.Footnote ³²

Höffner's comments placed the Church on the defensive. The newly elected president of the Central Committee of German Catholics, Bernhard Vogel, attempted damage control. In an interview with Der Spiegel, Vogel reassured the West German public that Catholics were free to vote for whomever they chose:

While Vogel did not condemn Cardinal Höffner's statement, he made clear that he did not think “it a good idea, when the Church, even the Catholic Church, recommends a particular party to voters.”Footnote ³⁴ Other prominent Catholics issued stronger statements. In an interview with konkret, Norbert Greinacher described Höffner's remarks as symptomatic of the Church's centuries-old negative attitude toward sexuality. The Arbeitsgemeinschaft der Priester- und Solidaritätsgruppen in der Bundesrepublik Deutschland (AGP), with approximately 2,000 members, condemned Höffner's statement, as did Dr. Lengsbach, professor of moral theology at the University of Munster, who actively campaigned for the SPD's reform initiative.Footnote ³⁵

Not all prominent West German Catholics objected to Höffner's statements, however. Otto Roegele, an editor for the international Catholic journal Communio, contended that Höffner's only crime was holding an unpopular position. He pointed out that no one had accused Lengsbach or Greinacher of meddling when they campaigned for the SPD wearing clerical garb. Roegele also characterized konkret—the journal in which Greinacher made his charges—as a “political-pornographic magazine.”Footnote ³⁶

The 1972 election results demonstrated that most Catholics did not feel obliged to honor the cardinal's recommendation. The CDU/CSU coalition did not regain power and voter patterns revealed an upsurge in Catholic defections from the CDU/CSU. In the city of Kleve in North Rhine-Westphalia— where 45.5 percent of Catholics attended mass every Sunday and one SPD legislator had once joked, “even the potatoes are Catholic”—the SPD experienced a 6.6 percent increase in votes.Footnote ³⁷ Defections from the CDU were equally dramatic among women voters. In the 1950s and 1960s, women overwhelmingly cast their ballots for the two Christian parties. In the 1969 national election, 10 percent more women than men had voted for the CDU. In 1972, the “woman bonus” dropped to 3 percent. Elisabeth Noelle-Neumann, an executive at the Allensbach Institute of Demography, attributed the 1972 SPD victory “primarily to Catholic women” who defected from the Christian parties.Footnote ³⁸ “The good Catholic housewives” whom Adenauer had contended in 1965 would never abandon the CDU when “the chips are down,” had done just that.Footnote ³⁹

The Vatican intervention and Cardinal Höffner's remarks divided German Catholics; they also obfuscated a complicated and nuanced debate within the Catholic Church itself. Most Catholic leaders did not endorse such extreme tactics. Although many feared that the liberalization of abortion law would set a dangerous precedence given Germany's Nazi past, they recognized that making such analogies marginalized the Church and alienated many West German Catholics. Not one speaker at the 1973 public rally “Für das Leben,” organized by the Consortium of Catholic Associations in Germany in conjunction with the ZdK, referred to Germany's Nazi past.Footnote ⁴⁰ In fact, when quoting a British doctor who opposed abortion reform in England, speakers at the rally excised the doctor's references to parallels between Nazi policy and contemporary British abortion policy.Footnote ⁴¹ No speaker recognized the legitimacy of abortion except in cases of an imminent danger to the mother's life, of course, but all stressed that both the church and state had a duty to provide assistance to pregnant women in crisis. Several also underscored the need to end discrimination against unwed mothers within the Church and hold fathers accountable.Footnote ⁴²

The 1972 election had exposed the growing isolation of the institutional Catholic Church on abortion. It also generated concerns among some prominent Catholics about the future of the West German Church. In Strukturwandel der Kirche, Karl Rahner wrote that if the Church continued down its current path, it would become “a historically and socially meaningless sect.”Footnote ⁴³ Rahner argued that “the Church should be a Church that courageously and clearly defends morality, but without moralizing.”Footnote ⁴⁴ The Catholic Church, he declared, must embrace pluralism—in West German society and within Catholicism. Although he did not refer to Höffner by name, Rahner made clear his disapproval of the cardinal's position:

For Rahner, issuing unilateral moral condemnations did not serve the best interest of the Church or its members. Instead, the Church needed to foster an environment where Catholics learned to make responsible decisions of conscience.Footnote ⁴⁶ Rahner worried that the institutional Church would opt for a “comfortable traditionalism and pseudo-orthodoxy,” noting that many Church leaders did not regret the “drifting of restless and questioning people from the Church, because then peace and order can be restored and everything in the Church could be as it was previously.”Footnote ⁴⁷ In fact, the abortion debate would contribute to the formation of a smaller Church; but it would not reduce it to a meaningless sect, as Rahner had predicted.

The Bundestag, the Constitutional Court, and the Indikationslösung

On April 26, 1974, the Bundestag passed the Fifth Statute to Reform the Penal Law, endorsing the term model (Fristenlösung). The vote was so close that individual votes had to be tallied for the first time in the history of the Bundestag (247 to 233). Given the vehemence of the debate leading up to the vote, the initial reaction of opponents was mild. The two most outspoken opponents—the Catholic Church and the German Medical Association—expressed only their regrets about the parliamentary decision. A few Christian opponents, such as the former president of the Evangelical Congress, Heinz Zahrnt, worried that the vehemence of the two churches' campaign might have been counterproductive—and thus garnered support for the opposition.Footnote ⁴⁸

A more likely explanation for the mildness of the response was that opponents of the Fristenlösung knew that for the measure to become law, it required the approval of the Bundesrat, the legislative body that represented the ten German states (Länder) at the federal level. In 1974, the Christian parties dominated the Bundesrat; opponents thus believed the bill had little chance of becoming law. As expected on May 10, 1974, the Bundesrat rejected the Fristenlösung approved by the Bundestag and called for the mediation committee (Vermittlungsausschuß) to negotiate a compromise. The SPD-FDP coalition government led by Helmut Schmidt now faced a decision. As the Frankfurter Allgemeine Zeitung explained, “whether it comes down to an effort at a compromise in the mediation committee or a confrontation essentially depends on how the Schmidt government appraises the issue of abortion, whether it is appropriate to demonstrate flexibility or whether it is an occasion to demonstrate the will of the new government to prevail even against the Bundesrat.”Footnote ⁴⁹ To pass the Fristenlösung without Bundesrat approval, supporters needed an absolute majority in the Bundestag, meaning that at least two of the eighteen SPD legislators who had previously supported the Indikationslösung, had to change their votes. When efforts at compromise with the Bundesrat failed, a new vote on the Fristenlösung was scheduled in the Bundestag for June 15, 1974. With nine of the eighteen SPD supporters of the Indikationslösung switching sides, supporters of the Fristenlösung now had an absolute majority (260–218).Footnote ⁵⁰

Catholic opponents reacted vehemently to the new vote. Bernhard Vogel, president of the ZdK, declared, “We accept the challenge; as so often in the past, we will fight tirelessly and advocate using all available means to ensure that the current decision of the German Bundestag is countermanded.”Footnote ⁵¹ Cardinal Döpfner, chair of the Bishops' Conference, vowed that the Church “will never resign itself” to the Fristenlösung.Footnote ⁵²

Catholic conservatives had not accepted defeat. On June 21, 1974, Hans Filbinger, a committed Catholic and Prime Minister of Baden-Württemberg, announced that his government would file an injunction to prevent the new law from going into effect until the German Constitutional Court ruled on its constitutionality.Footnote ⁵³ The court granted the injunction, but it did not reinstate the status quo. Instead it stipulated that Paragraph 218b and Paragraph 219 of the new statute, which imposed the Indikationslösung for late-term abortions, apply to all abortions. In addition to the two indications recognized by the new statute for late abortions (medical and eugenic), the court specified a third indication (rape).Footnote ⁵⁴

Concomitant with the action of the Baden-Württemberg government, 193 CDU/CSU Bundestag members submitted an application for an “abstract control of norms” (abstrakte Normenkontrolle) to the Federal Constitutional Court.Footnote ⁵⁵ The states of Bavaria, the Saarland, Baden-Württemberg, Schleswig-Holstein, and the Rhineland-Palatinate submitted similar motions. According to Article 14 of the Federal Constitutional Court Act, the First Senate of the Constitutional Court had jurisdiction; unlike the Second Senate, judges affiliated with the two Christian parties held the majority of seats.Footnote ⁵⁶ In mid-November 1974, the court began to hear oral arguments.

The primary issue at stake was the legal status of unborn life: was it entitled protection under Articles 1 and 2 of the Basic Law? If so, did the state's duty to safeguard fetal life include protecting it from actors other than the state (e.g., the mother)? Legal representatives for the CDU/CSU argued that the word everyone (Jeder) found in Article 2, Paragraph 2, Sentence 1 of the Basic Law allowed no exceptions; the state could not distinguish between prenatal and postnatal life.Footnote ⁵⁷

Speaking for the federal government, the Minister of Justice did not dispute the state's constitutional obligation to protect unborn life; he instead argued that the new law, in conjunction with other measures, protected unborn life by providing counseling and social assistance to pregnant women and families in crisis. This form of protection, the Minister contended, was more effective than criminal punishment.Footnote ⁵⁸

The legal representative for the Bundestag, Dr. Horst Ehmke, took a different approach, questioning the legal status of unborn life. In the court verdict reiterating the oral arguments made by all parties, Dr. Ehmke's position was represented as follows:

Ehmke turned the tables on his Catholic opponents and supported his claim by calling attention to the Catholic Church's past acceptance of delayed hominization: “According to Church law up until the end of the nineteenth century, only the aborting of an ‘animated’ fetus was punishable; in practice the eightieth day after conception was recognized as the point in time of animation.”Footnote ⁶⁰ He added that in recognizing the potential validity of indications other than a threat to the mother's life, his opponents implicitly acknowledged a distinction between prenatal and postnatal life.Footnote ⁶¹

On February 25, 1975, the court ruled five to three that the new statute was unconstitutional. In rejecting the arguments made by representatives of the federal government and parliament, the court emphasized the history and origins of the Basic Law. It noted that the inclusion of a provision that acknowledged “the self-evident right to life” was a “reaction to the extermination of ‘life unworthy of life’” under National Socialism. In affirming a right to life, the Basic Law explicitly distinguished the new state from the old. The court argued, moreover, that current scientific knowledge did not support a clear demarcation between prenatal and postnatal life.Footnote ⁶² “Everyone” (Jeder) included developing life:

The court also noted that the authors of the Basic Law repeatedly advanced a definition of life that included unborn life.

The court did not deny women's constitutional right to self-determination; the Basic Law established a hierarchy of values that gave precedence to the fetus's right to life over the mother's right of self-determination: “The opinion expressed in the Bundestag during the third reading of criminal law reform, which underscored the primacy of the woman's right to self-determination derived from human dignity over [the right] of all others for a certain time period, including the child's right to life, is not compatible with the constitutional order of values.”Footnote ⁶⁴ The court did not claim that abortion was only acceptable if the pregnancy endangered the mother's life; the legislature could establish an Indikationslösung balancing the constitutional claims of the mother against those of the unborn child.Footnote ⁶⁵ Abortion could not be decriminalized, however. Independent of the actual effectiveness of criminal sanctions, “the unjust character” of the act demanded “legal condemnation.”Footnote ⁶⁶

The judgment incensed the liberal media and feminists, who charged that it owed its reasoning to Catholic natural law; some critics even alleged a Vatican conspiracy. In an editorial piece for Die Zeit, Hans Schueler described the verdict as an “apodictic shibboleth from the command post on high [Feldherrnhügel] of Natural Law.”Footnote ⁶⁷ A headline in the Frankfurter Rundschau rechristened the decision “the Karlsruhe Encyclical.”Footnote ⁶⁸ Rudolf Augstein accused the CDU of exercising undue control over the composition of the Constitutional Court.Footnote ⁶⁹ Feminists staged mass protests at Catholic churches in Berlin, Munich, and Frankfurt.Footnote ⁷⁰

Although West German allegations of a Vatican conspiracy had no factual foundation, equally erroneous was the 1976 assessment of the American legal expert John D. Gorby, who claimed that religion had played no role in the decision. The reasoning of the verdict as well as the history of the Basic Law to which it alluded indicated that Christian moral principles, particularly Catholic ones, influenced the decision. In the dissenting opinion, Justices Helmut Simon and Wiltraut Rupp-von Brünneck (the only female justice) objected to the court's insistence on an independent ethical condemnation:

In effect, the majority decision inserted an absolute moral value into a modern criminal code; in doing so, the decision recalled earlier West German court decisions that explicitly affirmed a theory of supra-constitutionality and prescribed criminal sanctions for all moral offenses. For example, in its decisions on the redrawing of borders between southwest states from October 1951 and on the equality of husband and wife within marriage from December 1953, the Constitutional Court declared that the court had a duty to strike down any law that contradicted higher principles.Footnote ⁷² A decision of the Federal High Court of Justice (Bundesgerichtshof, BGH) from 1958 specifically stated that natural law established the limits of state law.Footnote ⁷³

By referring to the Parliamentary Council debates, the court incorporated earlier defense of life arguments that drew on natural law. In the immediate aftermath of World War II, natural law theory experienced a revival in Europe, particularly in Germany. As Gottfried Dietze explained in 1956, “The negative revolution of 1945 was negative indeed . . . insofar as it was mainly a reaction against juristic positivism, which had been carried to extremes under the dictatorships. Quite naturally refuge was sought in natural law, which promised to assure the restoration of human dignity.”Footnote ⁷⁴ This receptivity to natural law and concomitant disillusionment with legal positivism placed the Christian parties at a distinct advantage in promoting their vision for the new West German constitution.Footnote ⁷⁵ In the Parliamentary Council discussions of Article 2, conservative Christians, such as Hans-Christoph Seebohm and Helene Weber, who had called for a reference to “germinating life” in the right-to-life clause.Footnote ⁷⁶ The 1975 decision noted that Theodor Heuss of the FDP had agreed that life included prenatal life; however, he also argued that the topics of prenatal life and the death penalty belonged in the criminal code, not the constitution. The verdict also acknowledged that Dr. Otto Heinrich Greve (SPD) had objected to extending the “right to life” to prenatal life. Still, the court concluded that irrespective of political affiliation, most constitutional authors believed that the right to life extended to unborn life, since only one objection appeared in the minutes.Footnote ⁷⁷

The court's assessment was accurate up to a point; with the exception of Greve, SPD members made no objections to this understanding of the right to life during plenary discussions. But as Michael Gante pointed out, the Constitutional Court referred only the plenary discussions. The court did not mention discussions of the main committee of the Parliamentary Council. By the time of the plenary discussion, the SPD had abandoned earlier objections, recognizing that the prevailing consensus within the population with respect to values made it inopportune to pursue its previous position.Footnote ⁷⁸ Strategic silence, not consensus across the political spectrum, explained the absence of objections in 1949. This silence came back to haunt the SPD in 1975; the Christian political parties had won an important, if qualified victory in the abortion debate. In all future abortion debates, opponents would have to acknowledge the right to life of the unborn fetus.Footnote ⁷⁹

Catholic pro-life activists celebrated upon learning of the decision. ZdK President Bernhard Vogel announced, “Now the legislators must revise criminal stipulations on abortion in accordance with the limits imposed by the Federal Constitutional Court—a revision that is in accord with the Basic Law and that excludes a blanket approval of abortion.”Footnote ⁸⁰ But the celebration proved short-lived. The revised law established four indications: medical, eugenic, criminal, and social. Opponents attacked in particular the new social indication that allowed women with a doctor's approval to have an abortion during the first trimester if they could not care for the child for financial or psychological reasons.

Many Catholic organizations, including the BDKJ, the KFD, and the ZdK, condemned the new law, as did the German bishops. On March 13, 1976, the KNA quoted Cardinal Julius Döpfner as saying, “The Church will not accept the new abortion law and will do everything in its power to ensure that this law is revised.”Footnote ⁸¹ On May 7, 1976, the DBK published its official condemnation.

Despite protests, the new law went into effect on June 21, 1976, and supporters and their opponents settled into an uneasy truce. But conservative Catholics found the truce intolerable. The Militia Sanctae Mariae demanded that the ZdK petition for another constitutional review.Footnote ⁸² Other conservative Catholics lashed out against a liberal conspiracy within Catholicism, for which they held Vatican II responsible. One Catholic doctor wrote former ZdK President and CDU Culture Minister Bernhard Vogel that “until now I was of the belief that you were different from your brother in the SPD [i.e., Hans-Jochen Vogel], who disloyally turned his back on his family.”Footnote ⁸³ A priest complained that the ZdK had lost all credibility as an opponent of the reformed law because two ZdK members who served in the Bundestag had voted for the Fristenlösung.Footnote ⁸⁴ Another lay Catholic angrily denounced the German bishops, the ZdK, and the CDU for not supporting the archconservative French Archbishop Marcel Lefebvre, who condemned birth control, abortion, the ecumenical movement, and the post-Vatican II vernacular mass:

Given the strong objections of conservative Catholics and changing West German moral norms, the truce had little chance for long-term success.

International Year of the Child (1979): Escalating Tensions and a Changing Social Climate

Conservative Catholics saw the “International Year of the Child” as the ideal occasion for renewing the campaign against legalized abortion. On January 22, 1979, the Standing Council of the DBK drafted a declaration that presaged the upcoming campaign:

Three years after the passage of the Indikationslösung, the institutional Church had not admitted defeat. Instead, government statistics that showed an almost 30-percent increase in abortions revitalized the Catholic campaign.

On February 10, 1979, the Abendzeitung München printed a declaration by the Catholic group Cartell Rupert Mayer: “The ‘Year of the Child’ begins in many media outlets with reports about the number of abortions registered last year. After examining these appalling numbers, one asks whether the ‘Year’ should more appropriately be called the ‘Year of Killing Unborn Life.’”Footnote ⁸⁷ The national Catholic newspaper Neue Bildpost ran a banner headline that read: “For murder, large sums of money exist! Government—How you lied to us!” The first allegation referred to the 200,000,000 German marks expended annually on abortions by the federal health insurance program. The second alluded to the government's claim at the time of passage that the new law would reduce the number of abortions in West Germany.Footnote ⁸⁸

Beyond these editorial charges, several German bishops, along with Cardinal Höffner, condemned the development of an “abortion mentality” in their Easter sermons. Höffner labeled it “scandalous” and called for a constitutional review of the new law. His Easter sermon received widespread coverage in the secular media, including the Süddeutsche Zeitung, Die Zeit, Die Welt, and the Westdeutsche Allgemeine Zeitung.Footnote ⁸⁹

Conservative reaction to statistics indicating a significant increase in abortions placed the federal government and the SPD on the defensive.Footnote ⁹⁰ In response, Johannes Rau, the chair of the SPD in North Rhine-Westphalia, launched a counteroffensive, denying allegations made by Cardinal Höffner against the SPD: “It is completely indisputable and must remain indisputable that pregnant women who find themselves in an economic crisis should and must be economically and financially supported in order to remedy this financial emergency.” He also refuted Höffner's claim that the SPD endorsed a “right to abortion”:

Rau ended the letter with a veiled attack on the motives of Cardinal Höffner: “My party and I are prepared to search for improvements and to this end engage in pertinent discussions with the churches and social welfare associations; but surely the individual needs of pregnant women are not an appropriate topic for controversy or polemical debates in the public sphere.”Footnote ⁹²

The political climate in West Germany had changed substantially since the abortion debate began in the early 1970s. The SPD/FDP coalition had grown more confident of public support for the reformed Paragraph 218. Unlike in 1971, when some SPD officials abandoned the Fristenlösung because they feared antagonizing the churches, SPD/FDP government officials no longer wavered, perhaps because they recognized that abortion was a greater political liability and source of strife for the CDU/CSU and the Catholic Church than it was for them.

In fact, the CDU/CSU coalition had been deeply divided on abortion even in the early 1970s. Party members could not agree on the validity of the social and eugenic indications or on appropriate punishment for illegal abortions. Unable to resolve their differences, the Christian coalition submitted two reform proposals in 1974. The following year, the CDU/CSU remained divided and thus offered no counterproposal to the Indikationslösung proposed by the SPD. High-ranking Catholic leaders such as ZdK President Bernhard Vogel worried that the CDU's “listlessness” on the reform of Paragraph 218 might alienate Catholics.Footnote ⁹³

In sum, the abortion debate exposed fissures within the CDU/CSU coalition, between the Catholic Church and the CDU, and between the CDU and women. In the 1976 Bundestag elections, the CDU experienced another drop in the “woman bonus.” Only 1.6 percent more women than men voted for the CDU. Women's issues such as abortion had become a liability for the Christian parties, alienating their core constituency: women. For conservative Catholic and Protestant women voters, the indecision of the CDU/CSU signaled the party's betrayal of Christian values: “I sent a letter to our party, the CDU/CSU, stating, ‘If you keep delaying and cannot reach agreement on such important things, you will never hold power again.’”Footnote ⁹⁴ Conversely, for women increasingly influenced by the feminist movement, the party's stances on women's issues were no longer attractive. As Sara Elise Wiliarty has noted, in the 1970s the CDU “found itself caught between loyal voters who preferred the party's traditional stance on women's issues and an emerging constituency with different policy preferences.”Footnote ⁹⁵

These heated exchanges over Paragraph 218 marked only the beginning of a stormy year centered on the abortion debate. On July 14, 1979, Hartwig Holzgartner, the Catholic chair of the CSU's Working Committee for Health Policy, made national headlines when he stated, “The National Socialists killed the Jews, and International Socialists kill the unborn. What is taking place among our people is precisely the way back to Auschwitz.” The SPD and FDP charged that Holzgartner had sunk to an “unsurpassable level of political squalidness.”Footnote ⁹⁶ The CSU-General Secretary dismissed SPD reactions as “sanctimonious retorts.”Footnote ⁹⁷

As he had in 1972, Cardinal Höffner added fuel to the fire, ensuring that the abortion debate dominated media coverage of the 1980 national elections. In late July 1979, Deutschlandfunk invited Cardinal Höffner and Ingrid Mathäus-Maier, an FDP Bundestag member, to comment on Holzgartner's statements and the revised Paragraph 218. Although Höffner did not repeat Holzgartner's Nazi comparison, his remarks suggested that he sympathized with it: “Yes, I can understand why the Munich physician Dr. Holzgartner called abortions brutal mass murders—not the actual instances in the Federal Republic—but if abortion is murder, then 73,000 abortions is likewise mass murder.”Footnote ⁹⁸

Höffner's remarks produced an immediate reaction that illustrated just how much the West German social and political climate had changed since the early 1970s. In 1972, the Parliamentary Secretary of State in the Justice Ministry, Alfons Bayerl, expressed “shock and concern” about the Vatican newspaper's statements, but made no accusations about the Church's Nazi past.Footnote ⁹⁹ Even Rudolf Augstein, known for his antagonistic relationship with the Catholic Church, had refrained from attacking the Church's record under National Socialism in 1972.Footnote ¹⁰⁰ In 1980, the same rules no longer applied. On Deutschlandfunk, Matthäus-Maier responded to Höffner's remarks by attacking the Catholic Church's record under Nazism: “I must say that I find this comparison to mass murder committed during the Third Reich particularly astounding, given, for example, that the Catholic Church under the Nazi dictatorship did not likewise castigate such mass murders as it now thinks it must do for a reform reached through democratic processes.”Footnote ¹⁰¹

If Matthäus-Maier's 1980 remarks exemplified the erosion of political deference accorded the Catholic Church, Hans-Jochen Vogel's response illustrated the changed relationship between lay Catholics and the West German episcopate. Vogel—Minister of Justice, SPD party member, and practicing Catholic—spoke out against Cardinal Höffner's intervention in an open letter:

Vogel's response was personal, political, and unabashedly Catholic. He spoke of his moral obligation for the consequences of the revised law and acknowledged his disappointment with 1978 statistics that indicated an increase in abortions. He refused to abandon the current law, however, and argued that the focus should instead be “on further improvements to the system of counseling and assistance.”Footnote ¹⁰³ He warned against equating the social indication with financial need and thus condemning it as inappropriate in a welfare state: “In truth, the social indication includes a high number of complex conflicts that cannot be resolved with money.”Footnote ¹⁰⁴ Vogel suggested finally that Cardinal Höffner should emulate the example of Cardinal König of Vienna:

Hans-Jochen Vogel's letter differed significantly from his brother's 1972 interview in Der Spiegel discussed earlier. Although disquieted by Höffner's intervention, his brother had avoided confrontation, stating he was “no censor of cardinals.”Footnote ¹⁰⁶ Seven years later, Hans-Jochen Vogel did not hesitate to advise a cardinal on how to behave.

Although Höffner denied that he or any other bishop had ever accused Hans-Jochen Vogel “personally or the SPD in general of choosing to rob the unborn child of adequate protection,” he refused to rescind his assessment of abortion as murder.Footnote ¹⁰⁷ In 1980, he reiterated his 1972 claim that the SPD did not represent a viable choice for Catholics. This second rejection of the SPD received more media attention than the first; major news outlets outside Europe, such as the New York Times and The Washington Post, carried the story.Footnote ¹⁰⁸ The greater media attention reflected Cardinal Höffner's changed status within the Church hierarchy. In 1972 Höffner had not been chair of the DBK. His predecessor, Cardinal Döpfner, also condemned the revised law; after Vatican II, however, he never condemned a specific party platform or endorsed a candidate. In contrast, Höffner had a long history of transgressing the boundary between church and state cultivated by Döpfner and other Catholic bishops since Vatican II.Footnote ¹⁰⁹ No one should have been surprised, therefore, by the 1980 preelection pastoral letter endorsed by the DBK under the leadership of Cardinal Höffner. Although the letter did not explicitly endorse Franz Josef Strauss, the CDU/CSU candidate for the chancellorship, its condemnation of the current SPD/FDP government's fiscal policies and positions on abortion and divorce left little room for conjecture: the DBK wanted Catholics to support the CDU/CSU coalition.

The 1980 pastoral letter deviated significantly from those issued by the DBK prior to the 1972 and 1976 federal elections, when Döpfner chaired the DBK. According to Der Spiegel, Bishop Hemmerle drafted a letter modeled on earlier election letters. His letter advised Catholics to vote in accordance with Christian beliefs, but did not condemn specific policies; thus it did not give the impression of endorsing any particular political party. The DBK had taken a conservative turn, however, since the deaths of two influential moderates: Cardinal Döpfner in 1976 and Bishop Tenhumberg in 1979. Commission IV of the DBK, which was responsible for social and charitable issues, rejected Hemmerle's version and asked Anton Rauscher, professor of Christian Social Teachings at the University of Augsburg, to revise it. Rauscher had close ties with Franz Josef Strauss and was an active member of the CSU advisory committee on matters of church and state. Der Spiegel alleged that Josef Homeyer, secretary of the DBK together with Rauscher, bypassed Paul Bocklet, the Bonn leader of the Commissariat of German Bishops, who in recent years had spearheaded efforts to improve the West German Catholic Church's relationship with the SPD.Footnote ¹¹⁰ In any case, the partisanship of the final pastoral letter generated controversy in an otherwise dull election campaign. Chancellor Helmut Schmidt (SPD) railed that “a bishop or priest who wants to make policy should first take off his cassock.”Footnote ¹¹¹

Catholics also reacted negatively. Catholic youth in the diocese of Regensburg released a six-page statement that criticized Höffner's partisanship.Footnote ¹¹² A survey of 1,000 Catholics conducted by the Bielefeld-Emnid Institute for Der Spiegel showed that only 30 percent approved of the letter. The survey also noted that 32 percent of Catholics supported the existing law, while 41 percent thought the current law was not liberal enough. In short, roughly 70 percent of West German Catholics rejected the Church's position on abortion and Höffner's actions.Footnote ¹¹³

The pastoral letter most likely did more damage than good for the CDU/CSU's electoral prospects. As the sociologist Gernhard Schmidtchen noted, “The stronger its conflicts over values with the Church, the more attractive the Social Democratic Party becomes for the churchgoer, as well as for those who have distanced themselves from the Church.”Footnote ¹¹⁴ Höffner's comments by no means constituted the only reason for Franz Josef Strauss's failed bid for the chancellorship; but Strauss's defeat—one of the worst in the history of the West German Christian parties—made clear that the CDU/CSU could not go it alone and win; victory required an alliance with the FDP, and allying with the FDP meant distancing itself from the Catholic Church, including on the issue of defending unborn life.

1984: Christian Women, the Abortion Debate, and a New Call for Equality

The CDU/CSU returned to power in 1982, and the secular media predicted a cultural turn (Wende), believing that the Christian parties would pursue a policy of legal and moral restoration. Nowhere was the expectation stronger than in the arena of abortion politics, and feminists reacted to the CDU/CSU victory by staging nationwide demonstrations in support of women's right to self-determination.Footnote ¹¹⁵ Feminist reaction was predictable; however, no one anticipated the opposition of CDU women to the efforts of their male conservative colleagues to turn back the legislative clock on abortion.

In the 1970s, Catholic and Protestant women in the CDU had been deeply divided on abortion and exercised no significant influence on the political debate about Paragraph 218. Although few CDU women supported feminist demands in the 1970s, they were not immune to the effects of the movement. Prior to 1969, the Women's Union of the CDU (FU) focused exclusively on organizing charity and social functions; they did not address political issues. In 1969, the FU passed a new statute announcing the group's intention to take political stances on issues concerning women. When Helene Wex, a Protestant, became president of the FU in 1971, the organization slowly transformed into a serious political player within the CDU.Footnote ¹¹⁶

In the 1970s, CDU women focused on providing German women with a political alternative to feminism. They championed programs that recognized the value of women's labor in the home and in the workforce. For example, the FU backed a work-family policy that provided a parent with a small allowance to stay at home, the assumption being that it would be the mother, who was more likely to have the lower salary. Unlike the SPD plan, the FU plan made funds available to stay-at-home mothers, as well as to working mothers. Although this policy reinforced traditional gendered divisions of labor, it recognized the importance of parenting and assigned a higher value to women's conventional labor in the home. It also represented a tacit acknowledgment that not all children lived in traditional two-parent families. The abortion debate had shown that many single mothers aborted for financial reasons; CDU women believed the child allowance would curtail such abortions. The policy also had the advantage of aligning with demands by feminist journals such as Courage that women be paid for housework. Male conservatives in the party rejected the plan for both ideological and financial reasons. Some argued that women should not be paid to do what was their moral duty; others believed the policy was too expensive. The FU held firm, and in 1975 the CDU incorporated the FU child allowance plan into the party platform.Footnote ¹¹⁷

By 1982, the FU leadership had united in its support for the existing abortion law. Since the 1970s, the profile of its members and its officers had changed. The typical female CDU/CSU officer was no longer either a single women or an older woman in her late fifties or early sixties. Instead, she was more likely to be a young, married, educated career woman. In 1984, only two CDU Bundestag members were full-time housewives and more than half were under the age of forty-five.Footnote ¹¹⁸ These career women had no intention of deferring to their male colleagues, especially on women's issues. When seventy-four male CDU/CSU Bundestag representatives sponsored an initiative in 1983 that would abolish federal funding for socially indicated abortions, eighteen CDU women spearheaded the opposition.

At the 1984 CDU Party Congress in Stuttgart, FU leaders went on the offensive. Roitzsch and her supporters argued that proposed changes would not prevent abortions, but they did unfairly penalize poor women. Susanne Rahardt, a member of the CDU-Hamburg executive board, and Editha Limbach underscored the fact that wealthy women would continue to have socially indicated abortions in private clinics, while poor women would be forced onto the tables of quacks. Both women argued that creating a more family-friendly environment in West Germany was the key to reducing abortions in Germany.Footnote ¹¹⁹

The FU, in conjunction with the FDP and 190 moderate male CDU colleagues, created a commission that was responsible for drafting legislation that provided pregnant women in crisis with short, intermediate, and long-term assistance. Rowitha Verhülsdonk, chair of the Rhineland-Palatinate Women's Union and a Catholic, drew on the experience of Catholic counseling centers to defend this approach:

Since the 1970s, the position of CDU women had shifted to more closely approximate that of their SPD and FDP female colleagues. Although they rejected the Fristenlösung, the FU leadership refused to acquiesce to demands made by their conservative male colleagues to end federal funding for socially indicated abortions. They even rejected the demands of more moderate colleagues, such as Hermann Kroll-Schlüter and Peter Schröder, for a precise legal definition of a “social emergency.” Ingrid Roitzsch explained that “an emergency is a subjective perception. I do not want to play judge.”Footnote ¹²¹ Finally, leaders of the FU argued that abortion law must recognize diverse values. As Editha Limbach noted, “Personally, for reasons of conscience, I believe abortion is only justified if it serves to save another life, namely that of the mother. But I accept that other women may examine their conscience and reach a different conclusion. I believe we must respect different decisions of conscience and that our policy must take these differences into account.”Footnote ¹²² The FU defeated their conservative colleagues. In doing so, they preserved the CDU/CSU alliance with the FDP, without which the CDU could not have maintained its hold on power.Footnote ¹²³

Like the FU, the KFD also rethought its position on Paragraph 218. On May 24, 1984, the KFD national leadership announced its support for the FU initiative, stating that criminal punishment was not the best way to reduce abortions in Germany. The KFD's new orientation reflected its growing awareness of young women's defection from the Church. In an effort to stanch the exodus, the KFD's national leadership introduced a new program in 1979, championing women's equality in the Church and society, as well as a more moderate approach to questions of sexual morality. But the new orientation was not always well received at the local level. Church defections by liberals meant that local chapters of the KFD had grown more conservative in orientation. When the national KFD leadership repudiated the initiative of CDU/CSU conservatives, supported by the West German bishops, some local chapters did not approve. A priest, in his capacity as spiritual advisor for the St. Joseph-Sythen KFD chapter, accused the national leadership of defying the bishops:

The KFD's support of the CDU position also placed the organization in conflict with the ZdK, which, in 1982, had launched a lobbying campaign aimed at ending the federal funding of abortion.Footnote ¹²⁵

The proposed revisions to Paragraph 218 figured prominently at the 1984 Catholic Congress held in Munich in July 1984. The Congress ended with a mass rally to support the defense of unborn life. At the rally attended by 65,000 Catholics, ZdK President Hans Maier deplored the apathy toward unborn human life in West Germany, while many “cry out for baby seals.” Maier's assertion that West Germans valued baby seals over unborn human life was not without foundation. In February 1984, the Rheinische Merkur/Christ und Welt and the Süddeutsche Zeitung published the results of an Allensbach Institute survey, which asked West Germans to rank a list of moral transgressions from most offensive to least offensive. A majority of Germans chose the following order: child abuse, cruelty to animals, world hunger, the killing of baby seals off the coast of Canada, the use of chemical pesticides, an abortion by an otherwise healthy woman, deceptive statements by a politician, noisy mopeds, and, finally, giving up a newborn child for adoption.Footnote ¹²⁶

The survey revealed the chasm between the moral values of West Germans and those of the institutional Church. Even more disturbing for Church authorities, this gap also applied to Catholics. In a letter to the Süddeutsche Zeitung, a German Catholic woman attacked Maier's speech at the Catholic Congress: “To overlook cruelty to animals and, in particular, the murder of seals because abortion exists—does that even qualify as religion? My spontaneous reaction was to leave a Church that does not value the entirety of creation.”Footnote ¹²⁷ Although this reaction was atypical, the disenchantment of many women with the Catholic Church was real. At the forum on “Women in Church and Society” at the 1984 Catholic Congress, Hanna-Renate Laurien, a ZdK member and CDU politician, expressed her disappointment with the Church's continued silence on women's issues:

Women's relationship to the Catholic Church was changing—a fact that did not go unnoticed by the secular or religious press. In the Süddeutsche Zeitung, Heidrun Graupner described the reception of Hanna-Renate Laurien's presentation:

Given women's greater engagement in the Catholic community than that of their male counterparts, the Church could not afford to ignore this changing relationship.

Developing New Approaches for a Post-Secular Age: The Catholic Church, “The Unholy Alliance,” and Abortion

Taking account of women's changing relationship to the Church did not mean abandoning the political defense of unborn life; instead, the West German Catholic Church and organizations slowly developed new strategies for the changed political climate. These strategies included mobilizing the Church's conservative core constituency, embracing new arguments, and pursuing issue-specific alliances with political actors other than just the Christian parties. In the battle to protect unborn life, this new strategy produced its first victory in 1990, when the Bundestag passed the Embryo Defense Act, which banned embryological research, egg donation, surrogacy, and preimplantation genetic diagnosis (PGD). The Act imposed stricter measures than those first recommended by the conservative West German Christian coalition government in 1985.

Scholars have attributed the strictness of the Embryo Defense Act to the heterogeneity of the opposition, which included the Christian churches, Green Party feminists, and disability rights activists.Footnote ¹³⁰ But these disparate groups not only mobilized their respective constituencies, as well as diverse political actors with veto power, but also collaborated with each other. West German Catholics, in particular, demonstrated a new flexibility, setting aside past differences with both the EKD and the Green Party on abortion, in order to take part in the “unholy alliance”—as critics, such as the FDP legal expert Detlef Kleinert, dubbed it at the time.Footnote ¹³¹

In autumn 1987, Marian Dirks, the former president of the KFD, made contact with Green Party feminists, including Maria Mies, Mechthild Höflich, Brigitte Dorst, and Helga Fischer.Footnote ¹³² This unprecedented correspondence was prompted by the news that the American surrogacy broker, Noel P. Keane, had set up shop in Frankfurt. Keane planned to match childless West German couples with American surrogates; adoption of the resulting children would also take place in the United States. Dirks believed that blocking Keane required the coordinated efforts of all opponents, and she convinced KFD leaders and radical feminists of this. In October 1987, Anneliese Lissner, then General Secretary of the KFD, wrote to Mechthild Höflich that “the KFD has also not been inactive in this matter . . . In this initial round we seemed to have blocked it, but I will pursue further moves in this direction, and I am aware that I have found in you a sister-in-arms [Mitstreiterin].”Footnote ¹³³

The collaboration of Catholic women and Green Party feminists shocked supporters of genetic technology. Just one year earlier, the ZdK had banned the Green Party from participating in the biennial Catholic Congress because of its stance on abortion.Footnote ¹³⁴ Moreover, the Catholic rationale for rejecting new reproductive technologies (NRTs) differed substantially from that of radical feminists. The Catholic rationale flowed from its objections to abortion. Catholics believed that NRTs threatened the sanctity of life and of marriage. They argued that human life began at the moment of conception; thus the extracorporeal embryo constituted a human life and deserved state protection under Article 1 of the Basic Law. This duty, they claimed, followed logically from the 1975 German High Court decision on abortion, which stated, “the life developing in the mother's womb is an independent legal value that stands under the protection of the constitution.”Footnote ¹³⁵ In contrast, feminists emphasized the “techno-patriarchal” exploitation of women and the environment to which NRTs and genetic research contributed. Erika Hickel, a Green Party parliamentarian explained that “My two years' experience in the Bundestag with commission experts has taught me the meaning of fear. We had a horror cabinet here that exemplified how human dignity is again and again equated with men's dignity, how fantasies of domination over nature in its totality and over women in particular prevail, how contempt for nature descends into contempt for women.”Footnote ¹³⁶ Feminists also worried that NRTs reinforced the equation “womanhood equals motherhood,” which, they believed, led to the social stigmatization of women who chose abortion as well as to legal sanctions against abortion. Marina Steinbach declared, “Women who call for abortion are characterized in our society as antisocial, selfish, etc., because they do not behave in a role-appropriate manner, while reproductive technologies are justified because they meet the demands of women and their need to beget children. With both arguments . . . it is about establishing the primary role of women, in which motherhood either is coerced or is made possible.”Footnote ¹³⁷ Finally, they emphasized the racial, imperial, and class dimensions of NRTs, which supposedly constituted one dimension of an international population policy that sought to control women's fertility in Third World nations while promoting it in advanced industrial nations.Footnote ¹³⁸

These political tensions and ideological conflicts between the Catholic community and the Green Party do not tell the whole story, however. In standing up to CDU/CSU conservatives and the German Bishops' Conference during the 1983 abortion debate, the KFD had created space for dialogue with secular feminists on shared concerns, including surrogacy, NRTs, and genetic engineering. Despite significant differences, points of overlap did exist, moreover, between Catholic and feminist arguments against NRTs and genetic engineering. Both posited a slippery slope, with NRTs leading to a “new eugenics on a global scale.”Footnote ¹³⁹ Both emphasized the need to protect human dignity, though they did not agree on whose dignity was being violated. Feminists claimed it was women's dignity, while Catholics emphasized the dignity of the embryo. Still, in emphasizing “human dignity”—whether that of the woman or the embryo—Catholics and Green parliamentarians shifted the terms of the Bundestag debate from utilitarian arguments (risks-and-benefits analysis) to deontological ones.

Nor was it just Catholic women who showed themselves capable of bridging the ideological gap to advance a shared goal. To be sure, German bishops did not enter into an alliance with the Green Party; they compromised with the EKD, however, so that the two largest religious communities in Germany could coauthor a statement on NRT and genetic engineering. Since the mid-1970s, the EKD had moved away from a unilateral condemnation of abortion in favor of a social/medical indication that took into account not only the woman's physical but also her psychological well-being. Any joint statement on the protection of life would have to make allowances for the two churches' different views on abortion.

On November 30, 1989, DBK Chair Karl Lehmann approved a 112-page joint declaration on the defense of life, Gott ist ein Freund des Lebens. This ecumenical document, coauthored by Catholics and EKD members and endorsed by thirteen other Christian communities, differed in two key respects from previous declarations made by the West German Catholic Church.Footnote ¹⁴⁰ First, neither the German bishops nor the Vatican had ever linked the protection of unborn life to environmental protection. The ecumenical declaration highlighted this connection: “We need a comprehensive effort—therefore a declaration that addresses the challenges and responsibilities in protecting the living space of Earth as well as defending human life.”Footnote ¹⁴¹ Given the vociferous reaction of West German Catholic officials to the 1983 Allensbach Survey which showed that Germans considered killing baby seals a more serious moral offense than abortion, the willingness of Catholic leaders to embrace an argument that tried to bridge the gap between abortion opponents and environmental activists constituted a fundamental departure.

Second, German bishops had never framed their objection to abortion in terms of a violation of the rights of the disabled. Instead they had underscored the need to protect the dignity of all life. In 1986, the German bishops wrote, “Every human is destined to give shape to his own life under the most varied of circumstances. This implies, at the same time, that the life of each is worth the same, regardless of one's social status, education, ability, economic situation, or even health.”Footnote ¹⁴² In contrast, Gott ist ein Freund des Lebens specifically highlighted the negative impact that PGD had on the rights of the disabled: “Finally, we cannot overlook the mentality that could form concerning the life of disabled persons and their acceptance by society as a result of the coupling of prenatal diagnosis and abortion . . . Society could reach a point that it no longer accepts disabled children . . . For the self-image of the disabled, the consequences would be incalculable, given such an assessment by the world around them.”Footnote ¹⁴³

In 1990, the united front of the Christian communities, the resistance of Green feminists, and the coordinated efforts of Catholic women and Green feminists blocked genetic research in Germany and placed substantial limits on the use of new reproductive technology. It also gave the Catholic Church a new advantage in the battle against abortion. In future debates, proponents of liberalization would not only need to acknowledge a fetal right to life, but they would also have to contend with a new argument—namely, that abortion violated the rights of the disabled. This new argument garnered support not only among Christian conservatives, but also among Social Democrats and Greens, particularly women, who did not want to be seen as opposing the rights of the disabled. In 2009, the Bundestag approved a mandatory three-day waiting period for late-term abortions when a fetal disability has been diagnosed.

The abortion debate had divided German Catholics, resulting in many liberals and moderates leaving the Church. But the smaller, activist Church that emerged from this crisis continues to exercise significant political influence in a reunified and overwhelmingly secular Germany.