“We were very relieved that the statements of the staunch opponents of assisted suicide were apparently not able to convince the constitutional judges sufficiently,” explains Gita Neumann, medical ethicist and member of the HVD Federal Presidium.
Numerous association and church representatives as well as the invited members of the Bundestag had strongly advocated for the retention of the criminal law paragraph that was only passed in 2015. However, the majority of the constitutional judges made it clear at the end of the hearing that they consider the fundamental right to suicide to be more important than any concerns about professional assistance.
No restriction of fundamental rights for a small, relevant group
Was the small group of people who wanted to end their lives without external pressure or mental illness really “so relevant that we have to risk exposing the other group to greater pressure?” asked CDU parliamentarian Michael Brand. “Yes,” answered the presiding judge Andreas Voßkuhle dryly.
The fact that the legislator wanted to prevent a “social normalization” of suicide was “obvious from a moral point of view”, summarized Voßkuhle. However, “under constitutional law”, suicide in particular is “constitutionally protected conduct”, and it is therefore the task of the legislator to create a framework for a relevant group that wishes suicide to be possible “in a civilized and civilized manner”.
The judges’ precise questions during the hearing had already revealed their doubts as to how and whether the restriction of the fundamental right to self-determined termination of life could be adequately justified. Constitutional judge Peter Huber suggested that instead of a ban, a “milder construction” should be chosen, for example with an obligation to provide counseling as in the case of abortion. He made it clear that an incapacitated person could no longer take care of themselves or travel to Switzerland. Under current German criminal law, however, he would not find a doctor who would prescribe lethal medication. Andreas Voßkuhle agreed that the fundamental right to suicide in such a situation would therefore come to nothing. And Judge Johannes Masing reiterated that, regardless of hospice or palliative care, people have the right to say: “I no longer want to.”
HVD: Section 217 cannot be amended
Masing, who is known as a liberal, accused the MPs present who had initiated the law of deception: “You want to protect autonomy by taking away the opportunity to exercise it” – but ultimately they were only interested in showing: “We will not tolerate this.”
“In our opinion, Section 217 only causes mischief and violates important fundamental rights and principles of our constitution – precisely for the reasons put forward by Voßkuhle and others,” said Neumann. At the request of the Federal Constitutional Court, the Humanist Association of Germany had drawn up two statements. In these, the demand for the deletion of Section 217 of the Criminal Code without replacement is justified in detail and it is explained that it cannot be amended.
“If Karlsruhe imposes new regulations on the legislator, that will be a huge success,” explains Neumann. “Then only a solution under civil law would be conceivable and the debate would be reopened. It would then have to be conducted honestly in the sense of protecting autonomy – in contrast to the hypocritical arguments that were put forward on the occasion of the criminal legislation on Section 217.”
The Federal Constitutional Court’s ruling is expected to be announced in a few months.
