Forty Years Ago: Austria’s National Council Resolves to Legalise Abortion
The Indikationenlösung, abortion for ethical, medical or social reasons, or the Fristenlösung, abortion during the first trimester, was the issue in the early 1970s when a sweeping update was about to take place in criminal law, parts of which dated from the monarchy. Abortion law was also to be reformed, and the political parties in power had already decided on the former option after years of difficult negotiations. While abortion would remain illegal, it wouldn’t be punished under certain circumstances – termed indications – which would be ascertained by a doctor.
Austrian People’s Party legal-policy spokesperson, Walter Hauser, explained his party’s approval in parliament as follows: “We all want to prevent further tragedies in court, and we don’t want the granting of privileges, as are currently in place.” Justice Minister Christian Broda focused on the term ‘privilege’ and stated that abortion is primarily a social problem and only secondarily relevant to criminal law. An estimated 30,000 to 40,000 abortions performed in Austria each year would result in an average of 126 convictions. “Whether a woman who has had an abortion is taken to court or not is a matter of pure chance,” said the minister.
But in the opinion of the SPÖ Frauen, the Social Democratic Party’s women’s organisation, permitting abortion for ethical, medical or social grounds only would change little, as women would still be dependent on the judgment of doctors. For this reason they demanded first-trimester abortion. Gabriele Traxler, Social-Democratic union leader, explained their position as follows: “The fact is interesting that, in our society, doctors are responsible for making such an important decision, but women are considered incapable of deciding for themselves.”
The SPÖ Frauen exert pressure
The SPÖ Frauen’s actions and demands were so vehement that they put pressure on Chancellor Bruno Kreisky and the responsible Social Democratic minister. Then doctors were consulted once again, most importantly Alfred Rockenschaub, medical director of Vienna’s Semmelweis gynaecological clinic. His arguments were so pragmatic and convincing that they were difficult to dismiss: “If a woman wants to carry a child to term, illness of no severity would prevent her, and if she isn’t ready, nothing would stop her from aborting it one way or another, no matter how healthy she is. [...] In my opinion this should be left up to the woman. A limit must be set, [...] but during the first third of the pregnancy she must be able to decide for herself. Whoever fails to agree should leave Section 144 of the Criminal Code [which dated from the time of Maria Theresia] unaltered, as this argument about indications will never end.”
Such a change in course involved political risk for the government, because it meant that the Social Democratic Party would act independently and oppose the other parties. As can be expected, the reactions were fierce: Cardinal Franz König for example warned in the name of the Conference of Catholic Bishops that permitting abortion during the first trimester would dampen relations between the church and the government. Chancellor Kreisky responded by saying that the planned law would “provide the unborn with no less protection than the existing law”, though it was more “just, humane and effective”. The existing criminal laws, according to Kreisky, had done nothing to reduce the number of illegal abortions.
‘Immunity from punishment’ doesn’t entail a ‘legal right’
Despite their objection to the law, both the People’s Party and the Freedom Party abstained from party discipline, so individual parliamentarians could decide according to their conscience. On 29 November 1973 introduction of first-trimester abortion was resolved in parliament: According to Section 96 of the Criminal Code, abortion will not be punished if it takes place within three months after a pregnancy begins and after consultation with a doctor. The vote was 93 to 88 (the Social Democratic Party had an absolute majority in the National Council), and the People’s Party and the Freedom Party were opposed. The Federal Council, which was dominated by conservatives, vetoed the resolution on 6 December 1973, and the National Council, forced to vote a second time, overrode the veto on 23 January 1974. The new law took effect on 1 January 1975.
The bishop of the Evangelical Church of the Augsburg Confession, Oskar Sakrausky, compared this decision with the National Socialists’ Nuremberg Race Laws. Salzburg’s state government petitioned the Constitutional Court to repeal Section 97, which was denied. The group Aktion Leben voted to launch a petition calling for a referendum on the protection of human life, and about 900,000 signatures were collected in 1975. At that time, it had been the most successful petition in Austria’s postwar history.
The decision in favour of first-trimester abortions was accompanied by some other measures, including more contraception education provided in schools, widespread financing of family counselling centres, easier adoption and an increase in maternity benefits.
While the Socialist Party had successfully pushed through this new law, access to abortions was not addressed, as the law didn’t provide a legal right.
Absence of implementing regulations permits political latitude
The younger members of SPÖ Frauen saw a generational problem: the ‘traditionalists’ didn’t sense a responsibility to define how the law should be implemented. Others regarded this as a compromise between the parties: because of the absence of implementing regulations, both parties could be flexible in their centres of power. The Social Democrats could approve outpatient clinics in Vienna, and states dominated by the People’s Party could undermine the law through social pressure and refusal at hospitals. The health-insurance funds still refuse to assume the costs, and the Medical Board hasn’t demonstrated much cooperation.
Younger members of SPÖ Frauen – among them Johanna Dohnal, who was later the first minister of women’s affairs – were to thank for their untiring work to shape opinions, both within their party and in the general public. As a result, abortion has lost a great deal of its emotional volatility, becoming, despite all the restrictions, an accepted procedure.
Want to read more? (in German)
Sabine Fisch, “Eine ganz normale Entscheidung”, dissertation, Vienna, 2000
Susanne Feigl, “Was gehen mich seine Knöpfe an. Johanna Dohnal – Eine Biographie”, Vienna, 2002
The Fristenlösung, http://www.historisch.apa.at/cms/apa-historisch/dossier.html?dossierID=AHD_19750101_AHD0001
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