BONN — Imagine that the Texas legislature decided to declare that Roe v. Wade, the landmark Supreme Court decision legalizing abortion, did not apply within state borders.
While such a scenario is unlikely in the United States, Germany now faces a situation much like this.
The Bavarian state legislature has passed two new abortion laws that jeopardize a multipartisan compromise painstakingly worked out last year in the federal parliament. Abortion is one of the most difficult issues of German reunification.
One of the new laws requires women seeking abortion to state explicitly their grounds for doing so. It was passed after a three-day marathon debate last week during which one conservative legislator denounced a gynecologist sitting in the visitors' gallery as a "mass murderer." The other law prohibits doctors from earning more than 25 percent of their income from performing abortions.
The current federal law does not explicitly sanction abortion, but provides that women who undergo "counseling" before obtaining the procedure will not be prosecuted.
Barbara Stamm, the Bavarian minister for women and the family, has argued that the new state law merely "makes concrete" the federal law's requirement for counseling.
But for many advocates of the federal law, its usefulness lies in its artful lack of concreteness: The requirement for "counseling" is supposed to ensure that abortion is not taken lightly, but the looseness with which counseling is defined allows considerable freedom of individual conscience.
The federal law represented an effort to bridge the gap between two traditions in abortion law: state-funded abortion on demand in communist East Germany, and the much more restrictive practice in West Germany, where the Roman Catholic Church has a strong influence on public policy. An earlier attempt to work out a law appropriate to reunified Germany was struck down in 1993 by the constitutional high court on grounds that it failed to "protect life" as the German Basic Law requires.
The new Bavarian laws appear to be headed for challenge in the high court as well. But an influential jurist, Josef Isensee of Bonn, has called the current federal law unconstitutional in some key points and warned that a court challenge of the Bavarian laws could well expose what he sees as the weaknesses of the Bonn compromise.
Rita Griesshaber, who helped negotiate that compromise as a Green Party member of the Bundestag, warns that a high court challenge could lead to a "more restrictive" federal abortion law.
It is expected that the new law, effective Oct. 1, will simply send many Bavarian women across state lines in search of abortions. There are not that many abortion providers in Bavaria as it is. Of the nearly 1,500 gynecologists in Bavaria, it is estimated that only 30 are prepared to perform abortions, and just two physicians account for roughly half of the state's abortions.
Public opinion is clearly on the side of the Bonn compromise rather than the Bavarian approach - by 76 percent to 22 percent, according to a nationwide EMNID/n-tv poll taken in June, as the bill was being discussed. The Bonn compromise was favored even more strongly among eastern Germans and among left-leaning and better-educated voters. But even among conservative voters, 62 percent favored Bonn over Bavaria.
However, the Christian Social Union, sister party to Chancellor Helmut Kohl's Christian Democrats and thus part of his government, has a strong majority in the Bavarian legislature and was able to get its bills through. This puts Chancellor Helmut Kohl under some pressure from the right.
The subtext here is the issue of whether Bavaria will go its own way relative to the republic as a whole. Bavarians have traditionally demonstrated an independent streak not unlike that of the American South. When the high court ruled last year that a Bavarian law requiring a crucifix to be hung in all school classrooms was unconstitutional, the state's Minister-President Edmund Stoiber led the charge to defy the court.