NL 2008/12

The State needed to demonstrate its power
In honor of the 70th birthday of Dr. Horst Theissen

On December 27, 2008 a man turned 70 who made lawmaking history. German anti-abortionists ran riot at both his expense and that of his female patients.


In 1976 Germany only allowed indicated abortions. This could take the form of a medical, criminolgical, or eugenic reason or simply the dire need of a woman. However, a compulsory consultation before the procedure was required. These 'consultations' were commonly perceived as injurious and extremely uncomfortable by the women concerned. As of 1980 in Bavaria, abortions were only carried out as in-patient procedures (requiring several days stay in hospital) – if a hospital was willing to support the procedure at all. Women avoided the situation by going to Hessen or the Netherlands if possible – unless they found a doctor in the area who sympathised with their urgent predicament.


Since 1974 Horst Theissen was a practicing gynecologist in the Bavarian city of Memmingen. When he recognized the urgent need of a patient upon extensive consultation and review of her case, he would carry out the abortion as an outpatient procedure – without the compulsory consultation and despite the ban. He found it hypocritical, humiliating, and medically irresponsible for a woman under mental duress to be denied treatment close to home as an outpatient, requiring her yet again to present herself to strangers and explain the story of her unwanted pregnancy. Patients paid between 250 and 400 German Marks for the abortion, including consultation, ultrasound, post-operative care and check-up. He treated poor women for free. He would note the procedure on the patient's record card. In 1986, a former employee reported the doctor to the authorities in regard to tax evasion. This charge got one of the biggest criminal proceedings in Germany rolling:


The tax fraud investigation included the confiscation of all business records belonging to the medical practice, including patient record cards.  The tax evasion proceedings were accomplished relatively quickly. But the patient cards were handed over to the Memmingen department of public prosecution, an act which was against the law and  a violation of constitutional rights, and also  represented a breach of medical privacy.  The public prosecution would never have been authorized to confiscate such patient data: Such information involves a specially protected trust. 279 women and 78 men were placed under investigation for abortion or aiding in the procedure, based on information disclosed by the record cards confiscated for the tax evasion proceedings. The outcome in most cases was a penalty order. Only a few of the accused filed a protest and risked a public hearing. Theissen was placed in pre-trial confinement for 6 weeks and was only released upon payment of 300,000 Marks bail. He was charged with 156 cases of illegal abortion.


The Memmingen magistrates declined the legally compulsory engagement of doctors as expert witnesses. At the time and even years later, they considered themselves qualified to judge that in every single case it would have been possible for the woman to carry her pregnancy to term. She could have subsequently given her baby up for adoption, or to place it in a home. In their view, not even the threat of a lost workplace or dependency upon social welfare constituted an emergency situation.


The Memmingen trial lasted half a year (1988/1989) and was closely followed by the media: The proceedings took place during a time of heated political and social debate regarding the lawfulness of abortion. Additionally, the way the trial and the hearing of witnesses was carried out raised doubts about the neutrality of the criminal division, a view which was openly expressed on several occasions. Hence the trial was described as a 'modern day witch trial'. After an appeal, Dr. Theissen was sentenced to one and a half years of imprisonement on parole.


The women concerned were 'only' witnesses, but felt themselves treated as 'accused' and were occasionally 'inadvertently' addressed as such. Before the trial began, questionaires sent to witnesses additionally caused a stir because they asked about private, familial and financial matters. It was stipulated that if the women answered fully and with complete honesty they would not be required to make a personal court appearance. 156 women were summoned, their names were read out loud during the trial; 79 of them were placed on the witness stand and openly questioned about most intimate details; the remaining 77 were at least spared a court appearance.


Ironically enough it turned out that the most dogged and merciless of the trial magistrates had arranged for his girlfriend to have an abortion. He was dismissed from the case only after much resistance.


During the course of the proceedings, 77 of the original 156 cases were suspended. 36 of the remaining 79 cases were judged in the first instance to be illegal abortions according to § 218 StGB, and 4 were recognized as attempts. In the remaining 36 cases it was decided that no indication had been determined by a second doctor (in violation of § 219 StGB), but it was implicitly recognized by the court that there had been an emergency situation. Many other women paid the Memmingen District Court a penalty out of fear, instead of legally defending themselves.


Dr. Theissen closed his practice in Memmingen after the trial and worked as a doctor of naturopathy and homeopathie in Hessen.


For further study:

Elke Kügler, Memmingen: Abtreibung vor Gericht. Dokumentation und Einschätzung eines Stückes bundesdeutscher Rechtsgeschichte.  Extensive documentation of this trial can also be found at our archive where it is awaiting scholarly treatment.


Come and examine the case of Horst Theissen and other men and women pioneers of birth control and abortion: Wednesday-Sunday 2PM - 6PM. Mariahilfer Gürtel 37, 1150 Wien.