Comparative Pragmatism

Although several commentators have previously suggested that the United States and Germany now share more commonalities than differences, this Article challenges the conventional wisdom by suggesting that the United States and Germany have moved in the opposite direction on a spectrum of available abortion services. In the United States, the constitutional right to an abortion is unrealizable for many women due to restrictive state and federal laws and the absence of providers in many areas. In Germany, by contrast, despite the country’s formal recognition of fetal rights, early abortion is widely available and often funded by the government. In short, the dichotomy Professor Glendon described in 1987 may be unrecognizable today. Yet the comparison between Germany and the United States persists. Over the last decade, major court decisions in countries such as Colombia, South Africa, Portugal, and Mexico have referred to the sweeping, global influence of Roe v. Wade. At the same time, these courts cite a case decided in 1975 by the Federal Constitutional Court of Germany (“FCC”) to acknowledge that some countries protect “unborn life” under their constitutions. With less frequency and for similar purposes, contemporary courts also cite to Planned Parenthood of Southeastern Pennsylvania v. Casey and to a 1993 decision of the post-unification FCC. Although national courts mention cases of other countries, they consistently focus on the comparison between U.S. and German law as evidence of an emerging consensus on the need for legal abortion, at least on limited grounds