Advertising for termination of pregnancy

from Wikipedia, the free encyclopedia

Advertising for the termination of pregnancy is a criminal offense under German criminal law. It is standardized in Section 219a of the Criminal Code (StGB) and is one of the crimes against life .

legal position

Since its last amendment on March 29, 2019, Section 219a of the Criminal Code has read as follows:

(1) Whoever publicly, in a meeting or through the dissemination of writings (Section 11 (3)) for his pecuniary advantage or in a grossly offensive manner

1. own or third-party services to carry out or promote an abortion or

2. Means, objects or procedures that are suitable for the termination of pregnancy, with reference to this suitability

offers, announces, praises or announces statements of such content shall be punished with imprisonment for up to two years or with a fine.

(2) Paragraph 1 No. 1 does not apply if doctors or counseling centers recognized by law are informed which doctors, hospitals or facilities are willing to carry out an abortion under the conditions of Section 218a Paragraphs 1 to 3.

(3) Paragraph 1 number 2 does not apply if the act is committed against doctors or persons who are authorized to deal with the means or objects mentioned in paragraph 1 number 2, or by publication in medical or pharmaceutical journals.

(4) Paragraph 1 does not apply if doctors, hospitals or facilities

1. point out the fact that they carry out abortions under the conditions of Section 218a Paragraphs 1 to 3, or

2. refer to information from a federal or state authority responsible in this respect, a counseling center under the Pregnancy Conflict Act or a medical association about an abortion.

The provision is intended to prevent abortion from being presented as something normal in public and being commercialized by doctor advertising . It is an abstract endangering offense that protects unborn life as a legal interest.

story

The standard goes back to Section 220 of the Reich Criminal Code in the version of June 1, 1933. According to this, anyone who publicly offered their own or someone else's services to carry out or promote abortions made themselves punishable. Section 220 StGB was the result of a legal-political debate that stretched back to the Weimar Republic and the time of the German Empire. It should protect pregnant women from advertising-driven commercialization of their plight and also counteract the emergence of a market for abortions.

The first three paragraphs of the current version of the legal text are based on the new regulation of the abortion law through the 5th Criminal Law Reform Act of 1974 (from 1976 to 1993 numbered as § 219b). Its scope of application was restricted by the elements of the offense "because of his pecuniary advantage or in a grossly offensive manner".

Paragraph 4 resulted from a legal-political debate that was triggered by the fact that in November 2017 the district court of Giessen sentenced the doctor Kristina Hänel to a fine for advertising the termination of the pregnancy, because she explained on the website of her practice in anticipation of the usual medical fee have to perform abortions. On October 12, 2018, the Gießen Regional Court dismissed the appeal against the verdict. The case provoked public criticism and discussion about abolishing or reforming the offense. On the initiative of the federal government, the Bundestag decided on February 21, 2019 to supplement the standard with the exclusion of facts contained in paragraph 4. On appeal by the defendants, the Frankfurt am Main Higher Regional Court overturned their conviction in July 2019 and referred the case back to the Gießen Regional Court because it could not be ruled out that their conduct would be unpunished due to the new exclusion of facts. In December 2019, the Gießen District Court again sentenced Hänel to a fine because her behavior was not subject to the new exclusion of facts. The Frankfurt am Main Higher Regional Court rejected an appeal against this by the accused in December 2020, making the judgment final.

The Scholz government , which has been in office since December 2021, intends to abolish Section 219a. On January 17, 2022, Minister of Justice Marco Buschmann presented a draft for the abolition of Section 219a. It states that the ban on providing factual information on the subject of abortion makes it difficult for affected women to choose a doctor for a consultation. This violates her right to sexual self-determination.

Objective fact

services or means

According to Section 219a, Paragraph 1, No. 1 of the Criminal Code, the subject matter of the crime is one's own or third-party services for carrying out or promoting an abortion. This includes all abortions regardless of legality given in exceptional cases of medical or criminological indication . According to Section 219a Paragraph 1 No. 2 of the Criminal Code, other crimes are means, objects or procedures that are suitable for terminating the pregnancy, insofar as this suitability is indicated.

Offer, announce, promote or post any statement of such content

Acts constitute offering, announcing, promoting or making statements of such content. An offer is a declaration of willingness to make the designated services or means accessible. It does not have to be an offer in the sense of civil law , rather the invitatio ad offerendum is sufficient . A minority view in the literature requires that the declaration has an advertising effect that is equivalent to praise. To announce means to communicate an opportunity to procure objects or processes. Praising means mentioning and describing in praise or recommendation, emphasizing advantages, acknowledgment of beneficial effects, boasting presentation or attaching great value. The disclosure of declarations of such content includes any action by which these are made accessible to a larger group of people, such as newspaper advertisements or distribution on the Internet. What all variants have in common is that the services or means must be presented as accessible to the addressee.

Publicly, in a meeting, or by distributing literature

The act must also take place in public, at a meeting or through the dissemination of writings . It happens publicly when it is directed at an unmanageable, indefinite group of addressees. Individual advice is therefore not covered by the standard.

Because of his pecuniary advantage or in a grossly offensive manner

As a further mode, the offense requires that the perpetrator carries out the act for the sake of his pecuniary advantage or in a grossly offensive manner. For the intended pecuniary benefit, a lawful one is sufficient. This means that doctors also meet the criteria if they commit one of the crimes in expectation of the usual fee. Courts have therefore repeatedly condemned doctors for advertising abortions because they had stated on their practice's website that they performed abortions. The act is considered grossly offensive if it far exceeds the limits of decency set by general social values. In any case, this is to be assumed if it occurs in a lurid manner or relates to criminal abortions.

Exclusions

Paragraphs 2 to 4 contain various factual exclusions. Paragraphs 2 and 3 relate to cases in which there is no abstract danger of trivialization and exploitation in connection with the performance of abortions from the outset, because the act is carried out in relation to a group of people who are professionally and in accordance with the legislative requirements in the system of unpunished abortion is involved.

Paragraph 4 contains an exclusion of facts in the event that doctors either point out that they carry out abortions without punishment or refer to information from certain bodies. The regulation is a reaction to the conviction of the Gießen doctor Kristina Hänel for advertising abortions, who had stated on her website that she carried out abortions. It is considered unclear in the literature whether this exclusion of facts in the first variant requires that the declaration be limited to the mere reference to the fact that the declarant carries out abortions without punishment. In this sense, both the Court of Appeal and the Higher Regional Court of Frankfurt am Main concluded from the wording, history of origin and system of Section 219a (4) No. 1 StGB that the exclusion of the facts only relates to information that is limited to the fact that the doctor offers abortions . On the other hand, the exclusion of facts does not include information on how the abortions were offered. The District Court of Kassel , on the other hand, discontinued criminal proceedings for advertising abortion against two doctors who had declared on their practice’s website that they would carry out abortions, pursuant to Section 206b StPO , because this behavior was not punishable under Section 219a Paragraph 4 No. 1 StGB may be.

subjective fact

With regard to the element of the offense “because of his financial advantage”, intention is required; with regard to the other elements of the offence, any degree of intent is sufficient .

law competitions

If, as a result of the act, the perpetrator commits an abortion that falls within the scope of Section 218 of the Criminal Code, he has a majority of offenses under Section 219a of the Criminal Code . If the offense relates to a criminal abortion, there is a unity of offense with public incitement to commit criminal offenses ( Section 111 of the Criminal Code).

criminology

The forensic importance of the norm is low. The criminal prosecution statistics record the offense together with § 219b StGB (marketing of means for abortion) and show one conviction for both offenses in 2015-2017, none in 2018 and two in 2019.

criticism

As a result of the conviction of the doctor Kristina Hänel , who had declared on her website that she would carry out abortions, for advertising abortions by the Giessen district court , the legality and legitimacy of the criminal provision came under criticism.

constitutionality

Critics consider the norm to be unconstitutional as interpreted by the lower courts. It violates the professional freedom ( Article 12(1 ) of the Basic Law ) of doctors and the freedom of information of pregnant women ( Article 5(1) of the Basic Law) by forbidding doctors from providing information about the fact that they carry out abortions with impunity. Moreover , it does not do justice to the principle of ultima ratio under criminal law, since medical professional law already prohibits irrelevant advertising.

In legal literature, however, the view that the provision is constitutional prevails. The encroachment on fundamental rights is a mere professional practice regulation that is justified by the protection of human dignity ( Article 1(1) GG) and the right to life ( Article 2(2) GG) of the nasciturus . The intensity of the intervention appears to be low, since the pregnancy conflict counseling provides the necessary information about an abortion and contact details of doctors who perform abortions. The norm meets the requirement of the Federal Constitutional Court from the 2nd deadline regulation judgment that the legal right to protection of unborn life should be preserved and revitalized in general awareness. In addition, they ensure the openness of the outcome of pregnancy conflict counseling, which is constitutionally required so that the termination of pregnancy can remain unpunished under the conditions of § 218a StGB despite its illegality. For these reasons, numerous courts have also refused to submit the norm to the Federal Constitutional Court to review its constitutionality under Article 100(1) GG .

consistency

Critics recognize a contradiction in the legal situation, that abortions are not punishable under the conditions of § 218a StGB, but a mere preliminary action according to § 219a StGB is punishable. The prevailing opposing view emphasizes that advertising for the termination of pregnancy does not sanction the preparation of a main crime that is not punishable, but rather an impairment of a collective legal interest that is independent of it. It should prevent abortion from being perceived in society as unproblematic and socially appropriate.

literature

  • Gloria Berghäuser: The criminal liability of medically offering an abortion on the Internet according to § 219a StGB - a criminal provision in the fight against normality . In: JuristenZeitung . tape 73 , no. 10 . Mohr Siebeck, May 18, 2018, ISSN  0022-6882 , p. 497-504 , doi : 10.1628/jz-2018-0114 .
  • Monika Frommel : The dispute about § 219a StGB - the ban on publicly offering or offensive advertising for services that are suitable for abortion . In: Stephan Barton et al. (Ed.): Festschrift for Thomas Fischer . CH Beck, Munich 2018, ISBN 978-3-406-72459-6 , p. 1049–1064 .
  • Nino Goldbeck: The advertisement for the termination of pregnancy . In: Lawyers Association Life Law (Hrsg.): Journal for Life Law . No. 4 , 2005, ISSN  0944-4521 , pp. 102–113 ( juristen-vereinigung-lebensrecht.de [PDF; accessed 26 March 2018]).
  • Michael Kubiciel : Reform of abortion law? In: Journal of Legal Policy . tape 51 , no. 1 . CH Beck, 19 January 2018, ISSN  0514-6496 , p. 13–15 ( beck.de [accessed 26 March 2018]).
  • Tamina Preuß: Criminal advertising for the termination of pregnancy, § 219a StGB - Essential protection for the unborn life or improper criminalization in the run-up to a permitted behavior? In: Journal of Medical Criminal Law . tape 4 , no. 3 . CF Müller, May 18, 2018, ISSN  2199-4323 , pp. 131-135 .

web links

itemizations

  1. ↑ First report of the special committee for criminal law reform on the draft of a fifth law for the reform of criminal law (5th StrRG) submitted by the SPD and FDP parliamentary groups. (PDF; 1 MB) In: BT-Drs. 7/1981 (new). German Bundestag , April 24, 1974, retrieved March 26, 2018 .
  2. ↑ Albin Eser , Bettina Weißer: Section 219a , para. 1. In: Albin Eser (ed.): Penal Code . Founded by Adolf Schönke. 30th edition. CH Beck, Munich 2019, ISBN 978-3-406-70383-6 .
  3. ↑ Walter Gropp : § 219a , para. 1. In: Günther M. Sander (ed.): Munich Commentary on the Criminal Code . 3rd Edition. tape 4 : §§ 185-262 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68554-5 .
  4. ↑ Perdita Kröger: § 219a , para. 1. In: Heinrich Wilhelm Laufhütte, Ruth Rissing-van Saan, Klaus Tiedemann (eds.): Criminal Code. Leipzig Commentary . grand comment. Volume 7/1: §§ 211 to 231. 12th edition. De Gruyter, Berlin, Boston 2019, ISBN 978-3-89949-788-5 .
  5. ↑ a b Scientific services of the German Bundestag : History of the origin of § 219a StGB. (PDF; 186 kB) German Bundestag , December 8, 2017, retrieved March 20, 2018 .
  6. ↑ Michael Kubiciel : Deletion of § 219a StGB? necessary and appropriate? 5 Note 1. In: jurisPR-StrafR. juris , March 14, 2018, retrieved May 23, 2018 .
  7. ↑ a b c d AG Giessen , judgment of November 24, 2017, Az.  507 Ds 501 Js 15031/15 .
  8. ↑ a b c LG Gießen , judgment of October 12, 2018, Az.  3 Ns 406 Js 15031/15 .
  9. ↑ Bundestag votes for new version of paragraph 219a of the penal code. German Bundestag , February 21, 2019, retrieved March 29, 2019 .
  10. ↑ OLG Frankfurt , decision of June 26, 2019, Az.  1 Ss 15/19 .
  11. ↑ a b LG Gießen , judgment of December 12, 2019, Az.  3 Ns 406 Js 15031/15 .
  12. ↑ a b OLG Frankfurt , decision of December 22, 2020, Az.  1 Ss 96/20 .
  13. ↑ KNA : Catholic Church warns against abolition of advertising ban for abortions (in: faz.net January 8, 2022)
  14. ↑ on reception see e.g. B. Andrea Ritter: Abortion still a crime? The problem remains paragraph 218 , stern.de November 26, 2021.
  15. ↑ faz.net: Buschmann submits draft for deletion of paragraph 219a
  16. ↑ Albin Eser , Bettina Weißer: Section 219a , paragraph 3. In: Albin Eser (ed.): Penal Code . Founded by Adolf Schönke. 30th edition. CH Beck, Munich 2019, ISBN 978-3-406-70383-6 .
  17. ↑ Walter Gropp : § 219a , para. 2. In: Günther M. Sander (ed.): Munich Commentary on the Criminal Code . 3rd Edition. tape 4 : §§ 185-262 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68554-5 .
  18. ↑ a b Thomas Fischer : Criminal code with subsidiary laws . 68th edition. CH Beck, Munich 2021, ISBN 978-3-406-75424-1 , § 219a, para. 11.
  19. ↑ a b Perdita Kröger: § 219a , para. 4. In: Heinrich Wilhelm Laufhütte, Ruth Rissing-van Saan, Klaus Tiedemann (eds.): Penal Code. Leipzig Commentary . grand comment. Volume 7/1: §§ 211 to 231. 12th edition. De Gruyter, Berlin, Boston 2019, ISBN 978-3-89949-788-5 .
  20. ↑ a b c Reinhard Merkel : § 219a , para. 12. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Penal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  21. ↑ a b c Michael Rahe: Criminal advertising with reference to legal abortion? In: Legal review . tape 2018 , No. 5 . Walter de Gruyter, April 6, 2018, ISSN  0022-6920 , p. 232-238 , doi : 10.1515/juru-2018-0052 .
  22. ↑ a b Liane Wörner: Comment on AG Gießen, judgment of November 24, 2017, Az. 507 Ds 501 Js 15031/15 . In: New Journal of Criminal Law . No. 7 . CH Beck, April 7, 2018, ISSN  0720-1753 , p. 417–419 ( beck.de [accessed 24 June 2020]).
  23. ↑ a b Ralf Eschelbach : § 219a . Margin no. 8. In: Bernd von Heintschel-Heinegg (ed.): Beck'scher online commentary on the Criminal Code . 48th edition edition. CH Beck, Munich November 1, 2020.
  24. ↑ a b Walter Gropp : § 219a , paragraph 6. In: Günther M. Sander (ed.): Munich Commentary on the Criminal Code . 3rd Edition. tape 4 : §§ 185-262 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68554-5 .
  25. ↑ Kristian Kühl : § 219a , para. 3. In: Karl Lackner (limited), Kristian Kühl, Martin Heger: Criminal Code: Commentary . 29th edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  26. ↑ a b Ralf Eschelbach : § 219a . Margin no. 13. In: Bernd von Heintschel-Heinegg (ed.): Beck'scher online comment StGB . 48th Edition Edition. CH Beck, Munich November 1, 2020.
  27. ↑ Reinhard Merkel : Section 219a , para. 13. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  28. ↑ Albin Eser , Bettina Weißer: Section 219a , para. 7. In: Albin Eser (ed.): Penal Code . Founded by Adolf Schönke. 30th edition. CH Beck, Munich 2019, ISBN 978-3-406-70383-6 .
  29. ↑ a b Gloria Berghäuser: The criminal liability of the medical offer of an abortion on the Internet according to § 219a StGB - a criminal provision in the fight against normality . In: JuristenZeitung . tape 73 , no. 10 . Mohr Siebeck, May 18, 2018, ISSN  0022-6882 , p. 497-504 , doi : 10.1628/jz-2018-0114 .
  30. ↑ Thomas Fischer : Criminal code with subsidiary laws . 68th edition. CH Beck, Munich 2021, ISBN 978-3-406-75424-1 , § 219a, para. 13.
  31. ↑ Kristian Kühl : § 219a , para. 4. In: Karl Lackner (limited), Kristian Kühl, Martin Heger: Criminal Code: Commentary . 29th edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  32. ↑ a b Reinhard Merkel : Section 219a , para. 15. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Penal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  33. ↑ ab LG Bayreuth ZfL 2007, 16 .
  34. ↑ a b c KG Berlin NStZ 2020, 550 .
  35. ↑ Kristian Kühl : § 219a , para. 5. In: Karl Lackner (limited), Kristian Kühl, Martin Heger: Criminal Code: Commentary . 29th edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  36. ↑ a b Walter Gropp : § 219a , para. 8. In: Günther M. Sander (ed.): Munich Commentary on the Criminal Code . 3rd Edition. tape 4 : §§ 185-262 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68554-5 .
  37. ↑ Albin Eser , Bettina Weißer: Section 219a , para. 8. In: Albin Eser (ed.): Penal Code . Founded by Adolf Schönke. 30th edition. CH Beck, Munich 2019, ISBN 978-3-406-70383-6 .
  38. ↑ Walter Gropp : § 219a , paragraph 9. In: Günther M. Sander (ed.): Munich Commentary on the Criminal Code . 3rd Edition. tape 4 : §§ 185-262 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68554-5 .
  39. ↑ Thomas Fischer : Criminal code with subsidiary laws . 68th edition. CH Beck, Munich 2021, ISBN 978-3-406-75424-1 , § 219a, para. 21 ff.
  40. ↑ AG Kassel , decision of July 5, 2019, Az.  284 Ds-2660 Js 28990/17 .
  41. ↑ Albin Eser , Bettina Weißer: Section 219a , paragraph 12. In: Albin Eser (ed.): Penal Code . Founded by Adolf Schönke. 30th edition. CH Beck, Munich 2019, ISBN 978-3-406-70383-6 .
  42. ↑ Walter Gropp : § 219a , para. 12. In: Günther M. Sander (ed.): Munich Commentary on the Criminal Code . 3rd Edition. tape 4 : §§ 185-262 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68554-5 .
  43. ↑ Perdita Kröger: § 219a , Rn. 9. In: Heinrich Wilhelm Laufhütte, Ruth Rissing-van Saan, Klaus Tiedemann (eds.): Criminal Code. Leipzig Commentary . grand comment. Volume 7/1: §§ 211 to 231. 12th edition. De Gruyter, Berlin, Boston 2019, ISBN 978-3-89949-788-5 .
  44. ↑ Albin Eser , Bettina Weißer: Section 219a , para. 14. In: Albin Eser (ed.): Penal Code . Founded by Adolf Schönke. 30th edition. CH Beck, Munich 2019, ISBN 978-3-406-70383-6 .
  45. ↑ Walter Gropp : § 219a , para. 13. In: Günther M. Sander (ed.): Munich Commentary on the Criminal Code . 3rd Edition. tape 4 : §§ 185-262 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68554-5 .
  46. ↑ Administration of Justice. Prosecution. 2015. (PDF; 2.1 MB) Federal Statistical Office , February 9, 2017, accessed December 20, 2019 .
  47. ↑ Administration of Justice. Prosecution. 2016. (PDF; 2.49 MB) Federal Statistical Office , December 4, 2017, accessed December 20, 2019 .
  48. ↑ Administration of Justice. Prosecution. 2017. (PDF; 2.49 MB) Federal Statistical Office , 28 November 2018, accessed 20 December 2019 .
  49. ↑ Administration of Justice. Prosecution. 2018. (PDF; 2.52 MB) Federal Statistical Office , December 18, 2019, accessed December 20, 2019 .
  50. ↑ Administration of Justice. Prosecution. 2019. (PDF; 2.63 MB) Federal Statistical Office , October 29, 2020, retrieved January 26, 2021 .
  51. ↑ Paula Fischer, Henrike von Scheliha: Comment on AG Gießen, judgment of November 24, 2017, Az. 507 Ds 501 Js 15031/15 . In: Medical Law . tape 37 , No. 1 . Springer Science+Business Media, January 29, 2019, ISSN  0723-8886 , p. 79-80 , doi : 10.1007/s00350-018-5136-0 .
  52. ↑ BVerfGE 88, 203 Ls. 10
  53. ↑ Thomas Fischer : Criminal code with subsidiary laws . 68th edition. CH Beck, Munich 2021, ISBN 978-3-406-75424-1 , § 219a, Rn. 3a f.
  54. ↑ Nino Goldbeck: On the constitutionality of § 219a StGB . In: Lawyers Association Life Law (Hrsg.): Journal for Life Law . No. 1 , 2007, ISSN  0944-4521 , p. 14–16 ( juristen-vereinigung-lebensrecht.de [PDF; accessed 20 April 2018]).
  55. ↑ Scarlett Jansen: Ads for abortion on medical website. 7 Note 2. In: jurisPR-StrafR. juris , April 11, 2018, retrieved May 23, 2018 .
  56. ↑ a b Michael Kubiciel : Reform of abortion law? In: Journal of Legal Policy . tape 51 , no. 1 . CH Beck, 19 January 2018, ISSN  0514-6496 , p. 13–15 ( beck.de [accessed 26 March 2018]).
  57. ↑ Theresa Schweiger: Advertising ban for abortions - the next legal policy powder keg? In: Journal of Legal Policy . tape 51 , no. 4 . CH Beck, May 25, 2018, ISSN  0514-6496 , p. 98–101 ( beck.de [accessed 31 May 2018]).