Between “birth strike” and “race treason”: The history of Paragraph 219a of the German Criminal Code

Paragraph 219a criminalises doctors who wish to provide information about abortion. Its history goes back a long way and points to the scandal that even today there is no right to abortion in Germany.1

The Kristina Hänel “case” has pushed a central element of women’s oppression into public consciousness. In November 2017 Hänel was sentenced to a fine of 6,000 euros (or 40 days in prison) by a district court in Giessen at the instigation of a Christian fundamentalist because her website contained information about abortions and offered to carry them out. According to Paragraph 219a of the Criminal Code, which bears the title “advertising for termination of pregnancy”, anybody who “offers, announces or touts for such services” is liable to prosecution. This paragraph was enacted in May 1933 and therefore the Hänel defence campaign has rightly branded it a Nazi law. But its history goes even further back than that.

Economic hardship and abortion

At the foundation of the German Empire in 1871 the various previous state laws on abortion were consolidated into Paragraph 218 of the penal code, which is still with us today: this threatened women who terminated a pregnancy and those who provided help with up to five years’ penal servitude.

The frantic pace of industrialisation brought incredible hardship. On the basis of recorded miscarriages, which masked many illegal abortions, it has been estimated that in 1890 there were 100 abortions for every 1,000 births and stillbirths; 40 years later the number reached 500. According to a survey conducted by the left-wing sexologist Max Marcuse in 1913, 41 percent of working women and workers’ wives admitted having had an abortion due to economic hardship. Among the proletarianised rural population of East Prussia this proportion was 60 percent. At that time it was already clear that abortion was a class question: rich women had access to contraceptives and abortion provided by their family doctors, while “criminal abortion” had become the main birth control method of the proletariat.

In view of this, the ruling class raised an outcry about the “scourge of depopulation” and the “death of the race” without for one moment dreaming of alleviating the material hardship it had created. Instead women died at the hands of quacks or they inflicted serious injuries on themselves with objects or poisons. Convictions under Paragraph 218 increased, and further repressive measures were sought to come to grips with birth control “from below”. At the turn of the century the distribution of “objects for indecent purposes” was banned, which also meant contraceptives—“immoral rubber articles” according to a verdict of the Imperial Supreme Court. In 1913 the continuing decline in the birth rate was used to justify further legal attacks on birth control, but this was also a reaction to the growth of neo-Malthusianism and of the “birth strike movement”.

Decline of the birth rate and population growth

However, the decline of the birth rate did not mean that the labour supply—the “reproduction of the working class”—had been endangered, as is often assumed to be the reason for state measures against abortion. On the contrary, the population grew from 41 million to 65 million between 1871 and 1910—and this despite the mass emigration of workers, principally to the United States. This was primarily due to natural growth; infant mortality declined in this period by about 50 percent. The number of foreign workers also rose from 200,000 to 1.26 million. Last but not least, birth control had a much longer tradition among the bourgeoisie than among the emerging industrial working class.

Apart from overtly völkisch (racial-nationalist) concerns, bourgeois hysteria was directed against sexual “permissiveness” and “vice” among the working class combined with widespread sex education and the growth of proletarian organisations. The essential element of this ideology was an interest in social control of working class women’s—and men’s—lives, and this control was ruthlessly executed through women’s bodies.

Sex education and the debate about the “birth strike”

At the end of the 18th century, the English clergyman Thomas Malthus observed the growth of the working class with horror; he outlined a theory of impending overpopulation and demanded sexual abstinence and the abolition of poor relief to prevent them from bringing more destitute children into the world. By the end of the 19th century a neo-Malthusian movement had formed, which no longer preached sexual abstinence, but promoted sex education and contraception. In its wake, industry distributed masses of pamphlets with instructions and illustrations of new contraceptives, and the movement financed itself by, among other things, selling them illegally. Linked with the neo-Malthusians was the bourgeois radical League for the Protection of Mothers and Sexual Reform (Mutterschutzbund) under the leadership of Helene Stöcker. Both demanded the repeal of Paragraph 218.

In addition, Social Democracy, with its key figures such as August Bebel, Clara Zetkin, Luise Zietz, and the successful building of a working class women’s organisation, represented another radical movement for women’s rights. In this climate the great “birth strike debate” for “the right to control one’s own body” and liberation from the “slavery of the womb”, triggered by left-wing doctors practising in working class quarters and the Social Democrat Alma Wartenberg, took place. A large proportion of the SPD leadership opposed their own rank and file in this debate. Rosa Luxemburg called the demand “lazy thinking”, Zetkin described the “birth strike” as bourgeois and individualistic and Bebel considered coitus interruptus and condoms to be “perverse”. Wilhelm Liebknecht thought contraception was “immoral” and on his instructions the SPD press refused to accept any advertising for contraceptives.

Despite all its contradictions, one important reason for this rebuff was the experience of the old reactionary and anti-working class Malthusianism, against which the SPD leadership counterposed the struggle for better living conditions for the working class family. A further reason was that the campaign and its demand for a birth strike—strongly grounded in anarchist ideas—offered a solution based on individual refusal rather than a common struggle.

In August 1913 the SPD called a public meeting in Berlin under the title “Against the Birth Strike”. Some 4,000 people, mainly women, attended and hundreds had to be turned away due to lack of room. Luxemburg objected to working families “seeking help in the private bedroom” rather than mobilising as a class for better conditions.2 Zetkin criticised the fact that the proletariat was not seen as a class but as a family. She also rejected the idea of telling women how many children they might or might not have. Zietz attacked the “views of the late Malthus” head-on but defended the “living desire” of the working class woman to “participate more in culture” by reducing the number of births.

It proved impossible to convince those present. There was uproar and the male moderator of the meeting insulted the audience. A resolution against the birth strike could not be passed at this meeting or the follow-up meeting.

The leadership of the party rightly argued against the ideology behind the campaign for a “birth strike”, but at the same time they were overlooking the hardship and the concrete needs of their rank and file, and also the demands of women to take decisions about their own lives.

At the end of 1913 the government considered a complete ban on the advertising and sale of contraceptives and abortifacients under commercial law. For the first time a criminal law paragraph was drafted to make the announcement or advertising of “services for the performance or promotion of abortions” punishable by imprisonment or fine. Now Zetkin and Zietz took a clear line under the slogan “Against State Compulsion to Give Birth” and strongly argued against “police snooping into the distribution and use of contraceptives”.

Newspaper advertisements: “Advice and help with discrete women’s complaints”

After the German Revolution in July 1920 the newly founded Independent Social Democratic Party (USPD) put down a motion to repeal Paragraph 218. In the following years, the Communist Party (KPD) proposed similar motions which were never debated in the Reichstag. The SPD was unable to bring itself to propose more than a “time limit”, which would exempt abortions during the first 12 weeks of pregnancy from punishment. In 1926 Paragraph 218 was softened slightly by converting penal servitude to simple imprisonment and by the abolition of the minimum sentence. But, in the reform debate the rising Nazi Party opposed contraception and abortion because it considered that the “power of the German nation” was under threat.

Several attempts during this period to make “offering abortion” a punishable offence came to nothing. One argument for drafting such laws was that neither the punishability of abortion nor that of the provision of abortifacients had been able to combat the “nuisance” and “the spreading of the evil” which was seen to be “to a considerable extent due to malpractice in newspaper advertisements”. Such advertisements offered, for example, “advice and help with discrete women’s complaints” or “rinsing out for the purpose of cleanliness”. Among the advertisers there were apparently many former midwives or nurses and a few doctors.

The campaign: “Your Belly Belongs to You!”

Members of the medical profession were generally conservative and among the staunchest opponents of abortion. At their Medical Congress in 1925 they lashed out at the “addiction to abortion” and advocated only slight reforms, for example in the case of “violation”, ie rape.

But there was a small group of about 400 doctors, organised in the Association of Socialist Doctors, who attacked Paragraph 218 and demanded unconditional free access to abortion. In 1930 they founded the Committee for Self-Incrimination (Komitee für Selbstbezichtigung), supported by among others, the poet Else Lasker-Schüler and the physicist Albert Einstein. They published the confession “I have carried out an abortion” and “I have helped a woman”. Towards the end of the Weimar Republic the campaign against Paragraph 218 developed into the largest of that period. In this campaign many currents flowed together: the sexual reform movement, which Magnus Hirschfeld and his campaign against the criminalisation of homosexuality belonged to, had—alongside the small bourgeois radical wing of the women’s movement— founded many societies and opened numerous centres for family and sexual counselling. The KPD also played an essential role in this campaign. One major slogan was “Your Belly Belongs to You!” The play Cyankali by the Communist doctor and playwright Friedrich Wolf and the silent film adaptation of the same name about the hardship created by Paragraph 218 were shown all over Germany (and beyond). At the end the slogan “Down with Paragraph 218!” rang out. When Wolf and Dr Else Kienle were arrested for carrying out illegal abortions, a campaign committee against Paragraph 218 was formed with 800 branches all over the country. After their release Kienle appeared at a mass meeting of 15,000 people in the Sportpalast in Berlin.

The campaign was fuelled by the encyclical of Pope Pius XI and a draft law proposed by the Nazis “for the protection of the German nation”. The pope equated abortion with murder and warned against any liberalisation. And the Nazis demanded the reintroduction of penal servitude for abortion as “treason to the race”.

Destruction of the sexual counselling centres

The defeat of the left and the victory of the Nazis put an end to all efforts at reform. On 26 May 1933 Paragraph 220 (today’s 219a) of the Criminal Code against public offering of one’s own services or those of others to “perform or promote abortions” was enacted; the penalty was up to two years’ imprisonment or a fine. On the same day the property of the KPD was confiscated, the trade unions had already been banned at the beginning of May and books had been publicly burned, including those of Wolf and Hirschfeld. Adolf Hitler raged against the “liberal, intellectual women’s movement” and counterposed it to the “national socialist” woman, who has “only one programmatic point in mind: the child” for the “existence or non-existence of her people”.

The police authorities were urged to terminate the “cultural Bolshevik efforts for birth control and sexual hygiene” and to seize the property of the societies. The sexual counselling centres were closed and their members persecuted. They were replaced by counselling centres for “hereditary and racial welfare”. Municipal and religious marriage counselling centres subordinated themselves—sometimes “joyfully”, as in the case of the Protestant counselling centre in Berlin—to the goal of “racial improvement” of the people. In his book on the history of Paragraph 218, Dirk von Behren maintains that the enforced conformity of the counselling centres was a decisive first step towards the population and race policies of the National Socialists.3

The legacy of the Nazis

When in 1945 the Allies examined fascist criminal law, they were unable to detect any specific Nazi content in what became today’s Paragraph 219a and it remained part of German law even after the reunification of East and West Germany. But now the campaign for the repeal of Paragraph 219a has finally started. This will not be easy. Great pressure will be exerted on the other parties by the extreme right-wing Alternative für Deutschland (AfD) and the Network of Christian Fundamentalists. The Christian Democratic Union (CDU) and its Bavarian sister party, the Christian Social Union (CSU) do not want any change in the law and the liberal Free Democratic Party (FDP) wants only a minor change. The SPD leadership, which as part of the new Grand Coalition with the CDU/CSU wanted to keep its head down, now wants to find a compromise with the CDU/CSU after widespread protest among the party’s rank and file. However, Die Linke and the Greens demand the repeal of the Paragraph. A broad movement based on local campaigns, parties and trade unions can help to build up pressure to topple Paragraph 219a. This can become a step towards the final decriminalisation of abortion.4

Notes