Legal frameworks of abortion in the European Union: comparative insights from selected jurisdictions

Abstract

Authors of this article examine the evolution and current state of abortion law in two European Union Member States—Poland and Germany—placing their analyses within the broader constitutional and historical context. The study employs a dogmatic-formal method, supplemented by the historical approach, to trace legislative developments and interpret key judicial decisions that have shaped the legal framework governing the permissibility of abortion. Particular emphasis is placed on the role of constitutional interpretation and its impact on the stability—or volatility—of reproductive rights. Beyond the introduction—which succinctly outlines the importance of deliberations on the permissibility of abortion, as well as the implications of the terminology used in public discourse and the resulting terminological discrepancies—the article is divided into two main sections, each devoted to examining the issue in a specific national context.

The first substantive section examines the development of German abortion law, beginning with the Constitutio Criminalis Carolina of 1532 and tracing its evolution through the nineteenth and twentieth centuries. The analysis highlights the formation and endurance of §218 of the Penal Code, the profound transformations it underwent during the Imperial, Weimar, and Nazi periods, and the divergent approaches adopted in East and West Germany after 1949, as well as the complex legal reconciliation following their reunification in 1990. Special attention is devoted to the constitutional dimension of the debate and to the Federal Constitutional Court’s landmark rulings, which articulated both the state’s duty to protect unborn life and the woman’s fundamental rights to dignity and self-determination.

The second section focuses on Poland, tracing the trajectory of its abortion law from the early twentieth century to the present. The period prior to 1932 is addressed only in general terms, primarily due to historical circumstances: the 123 years of partition which deprived Poland of the ability to enact and enforce its own criminal laws. Therefore, the analysis concentrates mainly on Polish legislation from 1932 onwards, examining key statutory reforms and constitutional interpretations. It covers, in particular, the 1932 Penal Code, the 1956 liberalization introducing the social indication, subsequent restrictions and amendments, the 1993 Family Planning Act, and the landmark Constitutional Tribunal rulings of 1997 and 2020, along with ministerial and prosecutorial interpretative guidelines issued in 2024 as a response to the ongoing abortion debate.

The comparative perspective underscores profound differences between the two systems. While both constitutional courts acknowledge the state’s obligation to protect prenatal life, their interpretations of how this obligation interacts with women’s rights have diverged sharply. In Germany, the principle of proportionality has guided a balanced approach that integrates the protection of life with respect for individual autonomy and legal certainty; in Poland, constitutional reasoning has led to successive restrictions and enduring instability, reflecting deep societal divisions and the subordination of reproductive rights to political interests. The authors conclude that reproductive rights, as reflected in abortion law, serve as a crucial indicator of a legal system’s commitment to democratic values, legal certainty, and respect for individual autonomy. The comparison of Poland and Germany demonstrates that enduring legal stability in this area depends not only on legislative design but also on the broader constitutional culture and the capacity of legal institutions to reconcile competing fundamental values.