The different approaches in German and US constitutional law

The question whether the state must only respect or also actively protect fundamental rights still divides US and German constitutional doctrine and practice. In its First Abortion Decision of 1975, the German Constitutional Court explicitly recognised that the Grundgesetz imposes a duty on the state to protect fundamental rights against intrusions by third parties. The court argued: ‘The obligation of the state to furnish protection is comprehensive. It forbids not only – self-evidently – direct state attacks on developing life, but also requires the state to take a position protecting and promoting this life, that is to say, it must, above all, preserve it against illegal attacks by others.’ In sharp contrast, Chief Justice Rehnquist wrote for the US Supreme Court in DeShaney v. Winnebago County: ‘Nothing in the language of the due process clause requires the state to protect the life, liberty, and property of its citizens against invasion by private actors…. Its purpose was to protect the people from the state, not to insure that the state protected them from each other. The framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.’

The German Court left no doubt as to whose task it was to fulfil the duty to protect. The decision concerned an amendment to the Penal Code permitting abortions during the first three months of pregnancy.