Every nation has literary classics that shape its cultural identity. Germans have Faust, Goethe’s play about the successful but dissatisfied scientist Dr Heinrich Faust, who makes a deal with the devil. Faust has been performed, referenced and read in schools for more than two centuries now. Interestingly, the most tragic character in this tragedy is not the protagonist, but his “love interest”, Gretchen – a teenage girl groomed by the old man, impregnated and socially ostracised. Her solution? She drowns her “illegitimate” newborn child, accepts her death penalty and rejects Faust’s offer to save her from prison. In God’s mercy, the Christian girl seeks salvation and off goes Faust with the devil to new adventures in Faust, Part Two.
What would Gretchen do today, I wonder. Her fate is not only a result of sexual abuse and an inherently misogynistic morality, but also nonexistent reproductive rights. In today’s Germany, abortion is still illegal under the criminal code. It is nonpunishable under certain conditions, particularly during the first 12 weeks of pregnancy, but nonetheless, in practice a modern-day Gretchen might have difficulty finding a doctor willing to perform a termination, depending on where she lives. Moreover, Gretchen might be intimidated by the stigma, which is not just societal but enshrined in German law.
For decades now, the so-called paragraph 218 that criminalises abortion has been subject to political debate. Poland and the US are living proof that, even if not prosecuting anyone for carrying out or procuring an abortion is the accepted practice, that can be toppled quickly when ultraconservatives are in power.
The last German government, under the Social Democratic party’s (SPD) Olaf Scholz, made an attempt to reform paragraph 218 before losing power, but failed. Obviously, nobody expects the current German government, led by the conservative Christian Democratic Union (CDU), to take any progressive decisions on the right to physical self-determination. But what is now happening at the Bundestag goes further than preserving this outdated law – which must surely fall foul of international human rights standards.
After weeks of an orchestrated rightwing social media campaign, the election by the Bundestag of three new judges to the constitutional court (Germany’s highest court) was unexpectedly cancelled last week. The reason: one of candidates, Frauke Brosius-Gersdorf, a 54-year-old jurist and professor, stands accused of holding extremist leftwing positions, because she supports the decriminalisation of abortion.
Anyone who has listened to or read Brosius-Gersdorf’s judicial reasoning knows that she fully relies on the German constitution in her arguments and carefully evaluates the rights of the mother and the embryo depending on the phase of pregnancy. In the early phase, according to Brosius-Gersdorf, the mother’s rights predominate. In the later phase, as soon as the embryo is viable, the embryo’s right to life has to be protected.
Claims that Brosius-Gersdorf is in favour of abortions until the ninth month of pregnancy are blatant lies, spread by rightwing media as well as far-right Alternative for Germany (AfD) politicians.
The fact that Brosius-Gersdorf, who was nominated by the SPD, also argues for a ban on the AfD due to the classification of it by German intelligence as rightwing extremist might have been the real trigger for the propaganda campaign against her.
Other accusations have circulated around the jurist’s recommendation for compulsory vaccination during the pandemic, and allegations that her PhD thesis was plagiarised (which were proven to be false). But not until the focus fell on her allegedly radical views on abortion did the mobilisation succeed. Parts of the governing coalition – 50 to 60 Christian Democrat MPs – raised doubts about her nomination, which led to postponement of the vote, which will probably now be delayed until after the summer recess. Appointments to the constitutional court require a two-thirds parliamentary majority in a secret ballot.
Her critics now expect Brosius-Gersdorf to withdraw, although the SPD, Greens and the leftwing party Die Linke continue to uphold her nomination.
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Now, all of this might sound very familiar to those who have followed the US culture wars of the past decade. Some commentators speak of the “Trumpification of German politics”, since the whole debacle is founded on fake news and defamation. But the stigma of abortion itself is not an imported phenomenon. It is part of German cultural identity, perpetuated by the Gretchen tragedy, which has never really gone out of date.
Paragraph 218, by the way, is a relic from the 1871 criminal code and almost as old as Faust. Gretchen would certainly be surprised that so little has changed when it comes to bodily autonomy.
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Fatma Aydemir is a Berlin-based author, novelist, playwright and a Guardian Europe columnist