German Bundestag. Secretariat of the Committee on Family, Seniors, Women, and Youth
Requested statement for the public hearing in the Committee on Family, Seniors, Women, and Youth on May 13, 2024, regarding the Federal Government's draft bill
"Draft of a Second Act to Amend the Pregnancy Conflict Act" BT-Drs. 20/10861
Committee Document 20(13)109f
To the German Bundestag
Committee on Family, Seniors, Women, and Youth Berlin
Frankfurt am Main, 06.05.2024
Statement on the bill, Document 20/10861, 27.03.2024, Federal Government bill, Draft of a Second Act to Amend the Pregnancy Conflict Act, public hearing on 13.05.2024
I. About Myself
My name is Tomislav Čunović, born in Bielefeld, admitted as a lawyer by the Frankfurt am Main Bar Association since 2008, Managing Director of 40 Days for Life International1 and Of Counsel at the Institute of Law and Justice2.
40 Days for Life is an international movement that, through peaceful and lawful prayer outside abortion clinics worldwide, has already saved more than 24,000 unborn children from abortion because their mothers chose to keep the child. The Institute of Law and Justice is an institute affiliated with 40 Days for Life that is dedicated to defending freedom of speech, assembly, and religion.
In the course of my legal practice, I have successfully defended the freedom of assembly, freedom of speech, and freedom of religion of my clients - who organized peaceful prayer gatherings outside pro familia counseling centers in Pforzheim, Frankfurt am Main, and Passau - before the administrative courts in Frankfurt, Karlsruhe, Regensburg, and the higher administrative courts in Kassel, Mannheim, and Munich, and finally before the Federal Administrative Court in Leipzig. Based on this background, I will provide my legal assessment of the present bill.
II. Introduction
"Ladies and Gentlemen, I disagree with your opinion, but I would defend to the death your right to express it."
This quote is attributed to Voltaire and it very well encapsulates the core of the issue at hand.
This matter is not about one's stance on abortion—whether pro-life or pro-choice—but whether one can still freely express their opinion on this topic or must expect banishment from public discourse or even criminal sanctions if they dare to publicly question the prevailing abortion practices in this country.
The current bill raises more questions than it answers. It is impractical and will lead to greater legal uncertainty. Further legal conflicts are inevitable. It is already concerning that the current bill aims to restrict a specific opinion, namely the opinion of Christian-motivated pro-life advocates regarding the protection of unborn children, and thus may violate the principle of the prohibition of individual laws under Article 19(1) GG in conjunction with Articles 5, 8, and 4 GG.
Some provisions of the draft law (§8 and §13) are also too vague and thus may not be compatible with the principle of legal certainty (Article 20(3) GG, Article 103(2) GG), as the sanction catalog does not clearly define what exactly is meant by the behaviors listed as impermissible. In particular, the 100-meter distance rule around the entrances of counseling centers or abortion clinics (§8 and §13) is likely not in line with the principle of proportionality, as it is not apparent that such a significant local assembly restriction is necessary and proportionate. Finally, it is also questionable whether the federal government has the legislative competence for this legislative initiative, as matters of assembly law are generally within the jurisdiction of the states.
These and other legal conflicts will become particularly acute and sooner or later occupy the courts if the assembly or prosecution authorities do not interpret and apply the law in light of relevant case law on freedom of assembly and expression. However, if interpreted in a manner consistent with the constitution, neither a peaceful assembly3 of praying pro-life advocates in front of a counseling center or abortion clinic nor consensual conversations between a pregnant woman and a sidewalk counselor4 should be included and restricted, as neither peaceful prayer nor the consensual conversation between a pregnant woman and a sidewalk counselor constitutes a harassing or coercive situation and therefore cannot be prohibited.
III. Illegal Exclusion Zones against Peaceful Assemblies in Frankfurt am Main and Pforzheim
People who have a prayer concern for the life of an unborn child gather in front of pro familia counseling centers or abortion clinics to pray peacefully. This is something that belongs to the Christian tradition, praying for someone who is in mortal danger or about to die. This behavior is constitutionally protected. The characteristic of the freedom of assembly is that the fundamental rights holder, who can invoke this fundamental right, can freely determine the place, content, time, and manner of the assembly6. In plain language, this means: I go where I think I can make a difference and do not have to account to anyone why I go there and express my opinion there. If I demonstrate against a nuclear power plant, I stand in front of a nuclear power plant and not in the forest. Similarly, pro-life advocates or sidewalk counselors logically also go to pro familia counseling centers, which are in an obvious conflict of interest due to their organizational and economic ties with national abortion centers such as the pro familia abortion centers7 and international abortion organizations like the International Planned Parenthood Federation (IPPF)8.
It was positively known from the beginning to all parties involved in Frankfurt and Pforzheim, i.e., the assembly authority, the legal office, the mayor, the police, and pro familia, and is also documented that the prayer assemblies in Frankfurt and Pforzheim were always and absolutely peaceful and at no time objectionable from an assembly law or criminal law perspective. Therefore, the legal offices in both Frankfurt and Pforzheim strongly warned against the introduction of an exclusion zone (see procedural files), as such an intervention in the freedom of assembly would be unconstitutional. Accordingly, it is only logical that the Scientific Service of the German Bundestag clarified in 2018 that the introduction of fixed exclusion zones around abortion clinics would be unconstitutional9.
Nevertheless, pro familia, with the support of their lawyers and the help of sympathetic politicians and media, left no stone unturned and began to defame the peacefully praying pro-life advocates as a threat to the pro familia staff, passers-by, and especially pregnant women visiting the counseling center. At a certain point, the assembly authorities in Frankfurt and Pforzheim could no longer escape the orchestrated political and media pressure and, with their eyes wide open, ordered unlawful exclusion zones (beyond call and sight range) around the pro familia counseling centers in Frankfurt and Pforzheim, thus intentionally violating the principle of Article 20(3) GG, which stipulates that the administration is bound by law and order.
This unconstitutional orchestration was then clearly stopped by the Administrative Court of Frankfurt am Main with its judgment10 of 12.12.2021, case number 5 K 403/21.F, and with its decision11 of 01.03.2022, case number 5 L 512/22.F; the Administrative Court of Karlsruhe with its decision of 29.09.2022, case number 2 K 3296/22; the Hessian Higher Administrative Court in Kassel with its decision12 of 18.3.2022, case number 2 B 375/22; the Baden-Württemberg Higher Administrative Court in Mannheim with its judgment13 of 25.08.2022, case number 1 S 3575/21; and finally the Federal Administrative Court in Leipzig with its decision14 of 23.05.2023, case number BVerwG 6 B 33.22, and specified that blanket prohibitions of prayer assemblies in front of abortion clinics or counseling centers are impermissible15 and that an absolute protection against confrontation16 for pregnant women with the assembly topic at such locations does not exist.
During the aforementioned court proceedings, the reports inflated by pro familia, some media, and some politicians about alleged harassment and threats to pregnant women by peacefully praying persons collapsed like a house of cards. Not a single specific alleged incident of harassment or a corresponding witness could be named. From the beginning, it was rather a targeted campaign of media manipulation and misinformation.
IV. The Orchestration17 Continues
Nevertheless, the current bill is justified and advanced using the same rhetoric and tactics that were already used to lose the above-mentioned court cases on the part of the city of Frankfurt and the city of Pforzheim. The federal government apparently has completely lost its sense of the dynamics at play here and has become ideologically entrenched.
It is again clear to all parties involved that there is no danger posed by the absolutely peaceful pro-life advocates. The federal government cannot name specific facts or witnesses to the alleged harassments. Nevertheless, peacefully praying people or peaceful sidewalk counselors are once again being placed under general suspicion by law and reinterpreted as an assembly law threat to public safety and order or to pregnant women. This is absurd. Absurd because it is precisely the pro-life advocates who are constantly threatened18 and intimidated19 and exposed to hatred and incitement20.
The right to privacy of the pregnant woman, which undoubtedly must be protected and which can be adequately protected within the framework of the current law, is here being overstretched by the federal government and set against the assembly rights of peaceful pro-life advocates21 to criminalize them.
In view of the planned legalization of abortion, restricting the freedom of opinion and assembly of pro-life advocates by introducing fixed exclusion zones around abortion clinics would be a welcome tool to keep unwanted pro-life advocates away from abortion clinics in the future.
V. Conclusion
I can only advise against this unconstitutional legislative proposal. The right of assembly and criminal law provide sufficient means to balance the fundamental rights of all parties involved in a manner consistent with the constitution.
Thank you for your attention!
Tomislav Čunović
Lawyer, Frankfurt am Main
Managing Director, 40 Days for Life International Of Counsel, Institute of Law and Justice
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NOTES
1 https://40daysforlifeinternational.com/en/wl/sec/who-we-are ; https://www.40daysforlife.com/en/about-team.aspx
2 https://www.40daysforlife.com/en/institute-of-law-and-justice.aspx
3 BVerwG, Beschluss v. 23.05.2023, Az. BVerwG 6 B 33.22; https://www.bverwg.de/de/230523B6B33.22.0
4 VG München, Urteil v. 12.05.2016, Az.: M 22 K 15.4369; https://openjur.de/u/895847.html
5 BverfG zum “Spiessrutenlauf”, Beschluss v. 08.06.2010, Az.: 1 BvR 1745/06, https:// www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2010/06/rk20100608_1bvr174506.html
6 BVerfG, Brokdorf - Beschluss vom 14.05.1985 - 1 BvR 233/81, 1 BvR 341/81, https://openjur.de/u/174493.html
7 https://www.profamilia.de/ueber-pro-familia/medizinische-zentren
8 https://www.profamilia.de/pro-familia/bundesverband
9 WD BT, Ausarbeitung v. 02.07.2018, „Mahnwachen“ vor Schwangerschaftskonfliktberatungsstellen, WD 3 - 3000 - 229/18 ; https://www.bundestag.de/resource/blob/564394/d7b3b816f680aa4dd8986534fba427c6/wd-3-229-18-pdf-data.pdf
10 VG Frankfurt a.M., Urteil v. 12.12.2021, AZ: 5 K 403/21.F, https://verwaltungsgerichtsbarkeit.hessen.de/presse/40-taegige-gebetswache
11 VG Frankfurt a.M., Beschluss v. 01.03.2022, Az.: 5 L 512/22.F, https://verwaltungsgerichtsbarkeit.hessen.de/presse/40-tage-fuer-das-leben
12 VGH Kassel, Beschluss v. 18.3.2022, Az.: 2 B 375/22; https://verwaltungsgerichtsbarkeit.hessen.de/presse/40-taegige-gebetswache-0
13 VGH Mannheim, Urteil v. 25.08.2022, Az.: 1 S 3575/21 , https://verwaltungsgerichtshof-baden-wuerttemberg.justiz-bw.de/pb/,Lde/10525253/?LISTPAGE=1213200
14 BVerwG, Beschluss vom 23.05.2023, Az. BVerwG 6 B 33.22, https://www.bverwg.de/de/230523B6B33.22.0
15 BVerwG, Beschluss vom 23.05.2023, Az. BVerwG 6 B 33.22, https://www.bverwg.de/de/230523B6B33.22.0 16 BVerwG, Beschluss vom 23.05.2023, Az. BVerwG 6 B 33.22, https://www.bverwg.de/de/230523B6B33.22.0 17 Online Artikel v.24.01.2024, Lifesitenews, “German government plans to restrict por life activism in front of abortion facilities”, https://www.lifesitenews.com/news/german-govt-plans-to-restrict-pro-life-activism-in-front-of-abortion-facilities/
18 IDEA online Artikel vom 13.03.2017,”drei linksextreme Angriffe auf christliche Lebensrechtler”; hhttps://www.idea.de/spektrum/drei-linksextreme-angriffe-auf-christliche-lebensrechtler
19 Catholic News Agency online Artikel v. 06.03.2024, “Pro-abortion activists aggressively harass peaceful pro- life prayer vigil in Germany”; https://www.catholicnewsagency.com/news/257013/pro-abortion-activists- aggressively-harass-peaceful-pro-life-prayer-vigil-in-germany
20 Online Pressemitteilung 40 DFL Int. v. 04.03.2024 “Angriff auf eine friedliche Gebetsversammlung in Frankfurt am Main; https://40daysforlifeinternational.com/de/wl/sec/nachricht/id/angriff-auf-eine-friedliche-gebetsversammlung-in-frankfurt-am-main
21 Online Pressemitteilung 40 DFL Int. V. 13.02.2024, “Unsere Antwort ist das friedliche Gebethttps://40daysforlifeinternational.com/de/wl/sec/nachricht/id/unsere-antwort-ist-das-friedliche-gebet
