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Abortion and Judicial Review of Statutes

Published online by Cambridge University Press:  12 February 2016

Ernst Livneh
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Extract

It is difficult to see the connection between these two topics, but on 25 February 1975 the Constitutional Court of the Federal Republic of Germany gave a decision of great importance in both fields, and although Israel adheres to another system of law, in the opinion of the writer, this decision is of great interest here too.

The amendment of the German law relating to abortions, whose constitutionality was examined in the judgment mentioned, is part of a reform movement spreading from Europe to the Americas in the West and to Russia, India and Singapore in the East. It began to have influence upon legislation between the two wars (Russia 1920, Scandinavia and Switzerland in the 1930's), but gathered momentum particularly during the last decade (one of the earlier laws in this series is the English Abortion Act, 1967; one of the latest, the French Law of 17 January 1975).

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Articles
Information
Israel Law Review , Volume 12 , Issue 1 , January 1977 , pp. 15 - 31
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1977

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References

1 (1975) Neue Juristische Wochenschrift (hereinafter NJW) vol. 1, p. 573.

2 The sections roughly follow secs. 58–59 of the English Offences Against the Person Act, 1861. The repeal of sec. 176 (self-abortion) in 1966, while conforming to a recent tendency in foreign legislation and foreshadowing the local legislator's inclination towards reform, does not yet alter the general character of the Israel law as one of the conservative type. On reform proposals see infra.

3 Art. 317(4) of the French code pénal (which the Law of 17 January 1975 suspended for 5 years) even adds in respect of physicians and other health workers to the criminal penalties, the permanent loss of the right to exercise their profession.

4 (1939) I K.B. 687; (1938) 3 All E. R. 615. Dr. Bourne terminated the pregnancy of a child who had been raped, in order, to prevent her from becoming a “mental wreck”, and was acquitted.

5 Permission by some committee or State authority is obligatory in most countries of Eastern Europe, as well as under the West German law as restricted by the Federal Constitutional Court; in many other countries such permission is required for late abortions. For further details see infra.

6 The new (1974) sec. 218 c of the Criminal Code: English translation, (1974) 25 International Digest of Health Legislation 779 (hereafter referred to as IDHL).

7 The new (1975) art. L. 162–3 of the code de la santé publique: (1975) 26 IDHL 351.

8 E.g., sec. 1 (1) of the English Abortion Act, 1967; sec. 230.3 (2) of the American Model Penal Code (1962); secs. 218b, 218c of the above-mentioned German Code; art. L. 162–2(1) of the French Law.

9 E.g., in Czechoslovakia (1974) 25 IDHL 74; Singapore (1975) 26 IDHL 589. See also sec. 6 (against secs. 3 and 7) of the Israel Penal Law Amendment (Interruption of Pregnancy) Bill (1975–76) H.H. n. 1217, p. 101.

10 E.g., England: loc. cit. sec. 1(3) (except emergency operations: sec. 1(14); Model Penal Code: sec. 203.3(2) (except emergencies); France: art. L. 162–2(2).

11 E.g., France: 10 weeks: art. L. 162–1; New York: 24 weeks: Penal Law, sec. 125.05(3), the new sub-sec. (b).

12 E.g., England: sec. 4; France: art. L. 162–8.

13 This was, e.g., the case in 49 jurisdictions of the United States (among them New York up to 1970) till the adoption by some of them of the Model Penal Code, which proposes to consider also grave danger to the mother's physical or mental health, danger of grave physical or mental defects of the child, or pregnancy resulting from sex crimes. Between 1965 and 1970 about a dozen jurisdictions enacted laws on these lines, while two others, one of them New York, introduced more far-reaching alleviations. For particulars on the New York Law see infra n. 54 and text thereto. Information taken from Denzer in McKinney's, Consolidated Laws of New York, Book 39: Penal Law, Sec. 125.05 (3) (1975) 372.Google Scholar

14 (1939) 1 K.B. 687, 693–94; (1938) 3 All E.R. 615, 619B.

15 Brackets added: the passage constitutes a social indication, not a medical one.

16 Sec. 97(1) No. 1, as amended in 1974: (1975) 26 IDHL 227.

17 Sec. 230.3(2). See supra n. 13.

18 (1970) 21 IDHL 441–42.

19 Law of 1948, amended 1960: (1970) 21 IDHL 467–69.

20 Art. 120(3).

21 (1970) 21 IDHL 442, 498.

22 (1970) 21 IDHL 486. But a new Law of 1972 permits abortion during the first stages of pregnancy practically on demand: (1972) 23 IDHL 767.

23 (1970) 21 IDHL 468, 469.

24 Arts. L. 162–5, L. 162–6.

25 In England a decisive feature of R. v. Bourne was rape (of a child), but no such indication appears in the Act of 1967. Positive examples: Model Penal Code, sec. 230.3(2), third alternative; Germany, second rule of the Constitutional Court; and tacitly all laws permitting abortion on demand.

26 (1970) 21 IDHL 442, 460.

27 See supra n. 25.

28 On this legislative activity of the Court see infra in Part IV.

29 (1970) 21 IDHL 447.

30 (1972) 23 IDHL 767.

31 (1974) 25 IDHL 71.

32 (1972) 23 IDHL 13.

33 Medical Termination of Pregnancy Act, 1971: (1971) 22 IDHL 965.

34 Offences Against the Person (Amendment) Ordinance, 1972: (1974) 25 IDHL 322.

35 (1970) 21 IDHL 678.

36 (1974) 25 IDHL 71, 74.

37 Ibid., 332.

38 Ibid., 618.

39 (1970) 21 IDHL 699, 702.

40 See supra n. 9.

41 As to sec. 176 see supra n. 2.

42 (1970) 21 IDHL 494.

43 Ibid., 572.

44 (1973) 24 IDHL 773.

45 (1972) 23 IDHL 767.

46 Fifth Law for the Reform of the Criminal Law: (1974) 25 IDHL 779.

47 See infra Part III.

48 (1975) 26 IDHL 227.

49 Mentioned in the decision of the German Court: (1975) NJW 573, 582 at and in n. 2 to the dissent.

50 410 U.S. 113.

51 410 U.S. 179.

52 I.e., the capacity of being kept alive outside the mother's body, said to exist after 28 weeks of gestation (according to more modern views even after 20 weeks).

53 Roe v. Wade, 410 U.S. 113, 163.

54 Book 39, Sec. 125.05(3). See also supra n. 13.

55 Arts. L. 162–1, L. 162–4.

56 Art. L. 162–12.

57 Arts. L. 162–4 to L. 162–6: “une femme s'estimant placée dans la situation visée à l'article L. 162–1…” (i.e., in a situation of distress).

58 Art. L. 162–3, No. 1.

59 Art. L. 162–3, No. 2.

60 Art. L. 162–4.

61 Art. L. 162–5.

62 Reichsgericht, judgment of 11 March 1927 (RG 61, 242).

63 In the much smaller West German State of today and with contraceptives in use, estimates still varied before the reform of 1974 between 75,000 and 300,000 abortions each year.

64 E.g., in the tragic drawings of Kaethe Kollwitz.

65 Dr. Rahel Straus, Munich (later Jerusalem).

66 Blätter des Jüdischen Frauenbundes, November 1930, p. 1.

67 Mitteilungen der Internationalen Kriminalistischen Vereinigung, Neue Folge (6. Band, 1933).

68 A.G. v. Horovitz (1952) 5 P.M. 459, confirmed (1953) 7 P.D. 469; also Valenci v. A.G. (1960) (III) 14 P.D. 2365.

69 (1939) K.B. 687.

70 See supra n. 62.

71 The last-mentioned requirement is not found in the text of the amended Criminal Code, but in art. 3 of the above-mentioned Fifth Law for the Reform of the Penal Law which introduced the new sections 218–220 into the Code.

72 Decision of 21 June 1974, published in (1974) Bundesgesetzblatt vol. 1, p. 1309; English translation in (1974) 25 IDHL 783, n.c.

73 The decree of the judgment is published in (1975) Bundesgesetzblatt vol. 1, p. 625, the reasons, in NJW supra n. 1.

74 On the question of the Court's power to give so detailed legislative directions see infra Part IV.

75 Cf. sec. 3 of the Israel Human Rights Bill (1972–73) H.H. no. 1085, p. 448.

76 Cf. sec. 1 of the Israel Capacity and Guardianship Law, 1962 (16 L.S.I. 106).

77 410 U.S. 113, 159.

78 Ibid., 161.

79 (1964) NJW 1783, where the Court confirmed extradition to a country in which the wanted person faced death penalty although this was abolished in Germany by the Basic Law: the Court there held that the decision of the German legislator was not to be imposed by non-extradition on countries which did not experience the same misuse of that penalty by the Nazi régime.

80 (1972–73) H.H. no. 1085, p. 448.