The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law

This article discusses the German Constitutional Court’s decision on abortion rights, that the state was under a constitutional duty to protect the foetus from deprivations of its interest in life by the pregnant woman. The authors suggest that Canadian constitutional law academics and advocates for reproductive rights could benefit from studying the German abortion decisions, despite the surrounding controversy. The author argues that the protective nature of this constitutional decision can help clarify constitutional doctrine, as this is a factor present in many difficult constitutional cases. The German decision imposed protective obligations on the state of vulnerable constitutional rights-holders who are peculiarly vulnerable to the actions of private actors and identified as constitutional certain interests pursued by the state through measures that infringe constitutional rights.