Abstract
Can states make credible commitments to respect concessions they make as part of national reunification agreements? German leaders negotiating reunification in 1990 had to reconcile West Germany’s more restrictive abortion policy with East Germany’s more permissive one, and agreed in 1990 to a compromise that seemed to preserve first-trimester abortion on demand in the Eastern states. By 1993, however, that compromise had been undone and the formerly West German policy prevailed throughout the country. This history challenges the theory that commitments made by democratic regimes are credible, especially since there were a number of international and domestic factors present in this case that other scholars have identified as enhancing credibility. We investigate the trajectory of unification-era German abortion policy and make two arguments: the decision by West German leaders to undo their earlier concessions was conscious rather than accidental, and despite Western attempts to reach a compromise that Easterners would see as credible the prevailing view in the East during the negotiations was that the Western commitment was uncertain at best. We conclude with some broader speculation about reunification, and suggest that promises made by a larger partner during negotiations over national reunification have inherent credibility problems that democratic institutions cannot by themselves solve. This implies that future reunifications, for example between North and South Korea or China and Taiwan, may be even more difficult to negotiate than currently recognized.
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Notes
Seventy-seven per cent of East Germans wanted to maintain the current abortion laws while 11 per cent favored the West German laws. East German leaders who said they believed that the agreement would preserve abortion rights in the Eastern states included de Maizière and Christa Schmidt, the Minister of Health and Family (‘Currency offer of one-for-one is lift for de Maiziere’, The Times, 24 April 1990; ‘A divisive issue of German unity: How to reconcile abortion laws’, New York Times, 19 July 1990).
East Germans worry about future after vote, The Christian Science Monitor, 16 March 1990.
Abortion law dilemma casts shadow on german unity: women fear their interests may be sacrificed to expediency, The Guardian, 19 June 1990.
Abortion shifting German alliances, The New York Times, 26 August 1990.
Two Germanys sign treaty that will make them one, The Toronto Star, 9 September 1990.
Two Germanys sign treaty for unification, St. Petersburg Times, 1 September 1990.
Kohl sweeps to victory: Jubilant Chancellor crowns year of triumphs with success in unified Germany’s historic poll, The Guardian, 3 December 1990.
Kohl’s coalition threatened by abortion row, The Independent, 21 September 1990.
Germany gives women the right to abortion; end of bitter dispute is a defeat for Kohl, The Washington Post, 26 June 1992.
Members of the CSU and Catholic Church pledged to take the law to court before it was approved by the Bundesrat or signed by Chancellor Kohl (German row over abortion reform to go before court, The Washington Post, 26 June 1992).
World in brief: Abortion law signed, The Globe and Mail, 24 July 1990.
Granting an injunction before the law went into effect, the East and West maintained separate laws until the court could reach a final decision (German court blocks liberal abortion law, The Washington Post, 5 August 1992).
The Constitutional Court threw out the new law and put an interim solution in place until a new one could be renegotiated in parliament. They required counseling aimed at saving the unborn child’s life and banned any state sanction except for medical complications, financial hardship and rape. The decision was broadcast on television and spurred protests immediately after (Court annuls Germany’s liberal law on abortion; angry reaction as country takes a step back into Middle Ages, The Independent, 29 May 1993 and German court rules most abortions illegal; punishment barred for early procedures with counseling, The Washington Post, 29 May 1993).
Abortion laws changed again in 1995 after the CDU lost seats in the 1994 federal elections, but they remained more restrictive than those under the GDR, with abortion still technically illegal but, at the discretion of the parliament, not subject to criminal penalty for women who accept mandatory counseling sessions and a waiting period (Quint, 1997).
Abortions, unrestricted in East Germany, become unification issue, The Washington Post, 14 May 1990.
Germany faces abortion debate: Women in East prepare for fight to retain law West finds too liberal, The Globe and Mail, 8 October 1990.
United they fall; Anna Tomforde finds out how Westernisation is affect Eastern German women, The Guardian, 6 May 1992.
German court rules most abortions illegal; punishment barred for early procedures with counseling, The Washington Post, 29 May 1993.
Furthermore, federalism as an institutional principle may not be enough to prevent political elites from undermining local autonomy when they are faced with partisan pressures to win factional battles (Kollman, 2013; Tillin, 2014).
The case of German reunification also, as it happens, shows that stronger states are unrestrained on issues that are outside the range of what democracies typically accept. After reunification, German courts applied West German legal standards to East German border guards who had committed ‘unconscionable’ acts even though those acts were legal – indeed compulsory for them – at the time (Gabriel, 1999), using Western legal principles to supplement the ‘ambiguities’ of controlling precedent (Herdegen, 1994).
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Jahr, E., Rector, C. Democratic commitments are not always credible: Abortion and German reunification. Comp Eur Polit 14, 645–662 (2016). https://doi.org/10.1057/cep.2014.46
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DOI: https://doi.org/10.1057/cep.2014.46