The delicate balancing act

by Diana-Maria Stocker //

Pretty much everyone has an opinion, but only a few have read what they have formed an opinion about. Especially some journalists. At least that is the assumption when you observe the intense media crusade of conventional media against the in parts very overheated and emotional debate about Frauke Brosius-Gersdorf on other channels. And by reading, we don't just mean skimming through the report or even the overburdened conclusion of having an AI summarize the Commission report, but simply reading it properly. However, reflexive consent to conformism often appears to be more important than a thorough examination of the content. Otherwise, it would be difficult to explain why dissenting positions are so quickly defamed, demonized or even personally attacked.

Brief review: The controversy surrounding Frauke Brosius-Gersdorf, candidate for the Federal Constitutional Court, is sparked by the report of the Commission on Reproductive Self-Determination and Reproductive Medicine, which she played a key role in drafting. While most of the mainstream media emphasize the political debate about her position on the possible decriminalization of abortion, her statement - "The assumption that human dignity applies wherever human life exists is a biologistic-naturalistic fallacy. There are good reasons why the guarantee of human dignity only applies from birth." - simply ignored or marginalized as "taken out of context". 
Well, this connection should be made here, at least in one respect: In her report, Frauke Brosius-Gersdorfs suggests that a subjective psychological overload of the pregnant woman could also be considered as an indication for an abortion in advanced pregnancy. And this is a sensitive and constitutional tightrope walk.
In its landmark rulings (BVerfGE 39, 1 and 88, 203), the Federal Constitutional Court has established a high standard of protection for unborn life, particularly from the point at which the foetus is extrauterine (viable outside the womb). In this phase, abortion is only permitted in exceptional cases - for example if the mother's life is in danger or her health is at serious risk. The reference to "psychological overload" could be misused as a carte blanche; it does not close the legal gray areas of current practice, but opens them up further. 
Ethically, the question arises as to whether a subjective psychological burden can be sufficient to set aside the fetus' right to life in the late phase. Critics fear that such a formulation shifts the balance between the woman's right to self-determination and the constitutionally enshrined protection of unborn life. A potential constitutional judge in particular is expected to weigh things up sensitively and use precise language so as not to cast doubt on the inviolability of human dignity.
The debate is given additional weight by Germany's historical legacy. The crimes of National Socialism, in particular forced sterilization and eugenic selection, call for particular restraint in all legal discussions that affect the lives of unborn children. With this formulation, Brosius-Gersdorfs promotes fears or misinterpretations in the context of disabilities or prenatal diagnostic findings. This is fatal.
Many media outlets have so far focused on the headlines about decriminalization without shedding light on the legal depth and the Commission's differentiated considerations. It is precisely this abbreviated presentation that can further increase mistrust. Critical voices - from conservative, Christian or ethical camps - focus on the problematic passage because the woman's right to self-determination could, in an abusive manner, completely override the child's right to life.

The discussion surrounding Frauke Brosius-Gersdorf shows how sensitive the abortion issue is in the area of tension between law, ethics and history. Her task as a constitutional judge would be to maintain this balance - and this requires not only legal excellence, but also the ability to create trust through clear, differentiated language.