Berlin court undermines freedom of conscience in “morning-after pill” judgment 

  • Pharmacist acquitted for declining to sell morning-after pill for reasons of conscience; but Court fails to uphold conscience rights. 
  • Court ruling suggest that pharmacists who conscientiously object to sale of certain drugs must give up the profession.  
  • ADF International has been supporting pharmacist Andreas Kersten for six years – “Violation of freedom of conscience.”  

Berlin (03 July 2024) – The Higher Administrative Court (Oberverwaltungsgericht) of Berlin-Brandenburg has acquitted pharmacist Andreas Kersten of the charge of breach of professional duty, dismissing an appeal by the Berlin Chamber of Pharmacists. The Chamber has been ordered to cover Mr Kersten’s legal fees. While ruling in favour of Kersten, the Court failed to uphold the freedom of conscience of pharmacists in Berlin. 

Kersten was charged in 2018 when he exercised his freedom of conscience to refrain from selling a potentially abortifacient drug, the “morning-after pill,” in his pharmacy. The Court held that Kersten was relying on a letter from the federal Ministry for Health, which stated that pharmacists may exercise their conscience in such situations. According to the Court, he had no reason at the time to seek more legal information, resulting in his acquittal. 

“Even though I have been acquitted, I am dismayed by the reasoning rejecting our freedom of conscience. Now pharmacists could be forced to give up their beloved profession simply for staying true to their convictions."

- Andreas Kersten, Pharmacist

However, in the oral judgment (a written judgment will follow), the presiding judge explained that the duty to provide drugs (including the morning-after-pill) overrides the freedom of conscience – a stance at odds with international human rights law protecting conscience. He noted that a pharmacist who could not reconcile the dispensing of certain drugs with his conscience would have to give up his profession. 

“I am relieved that the Court has rejected the sanction demanded by the Chamber of Pharmacists against me. I became a pharmacist to promote health, even to save lives. I cannot reconcile selling the so-called ‘morning-after pill’ with my conscience because of the potential to end a human life, however early. The first instance court initially backed my stance, finding no fault in my conscientious objection. But even though I have been acquitted, I am dismayed by the reasoning broadly rejecting our freedom of conscience. Now pharmacists could be forced to give up their beloved profession simply for staying true to their convictions,” said pharmacist Andreas Kersten after the judgment was handed down. 

Background: Charges for exercising conscientious objection  

Since 2018, the Berlin Chamber of Pharmacists has been pursuing professional proceedings against pharmacist and (then) owner of the Undine pharmacy, Andreas Kersten. He had declined to stock and sell the “morning-after pill” for reasons of conscience. The Berlin Administrative Court’s chamber for Healthcare Professional Claims ruled in Kersten’s favour in November 2019.   

At the time, the court held that pharmacists could invoke their freedom of conscience. However, the Chamber of Pharmacists appealed against the judgment, resulting in Kersten’s protracted wait for justice. 

Freedom of conscience in jeopardy 

On 26 June 2024, the higher court upheld Kersten’s acquittal in this specific case. It dismissed the Chamber of Pharmacists’ appeal in its entirety and ordered it to pay the costs of the proceedings.  

“After more than five years of legal uncertainty, it is now clear that Andreas Kersten did not culpably breach his professional duties. We welcome this finding. However, the reasoning behind the judgment is egregious. In the oral judgment, the Court stated that pharmacists will have to choose between their convictions and their profession in the future, at least in Berlin,” said Dr Felix Böllmann, Director of European Advocacy for ADF International, which has supported Kersten’s case for six years. 

Böllmann continued: “The Berlin Higher Administrative Court’s reasoning is in direct contradiction to international law. Fundamental freedoms must be effectively guaranteed, not just on paper. But the Court’s reasoning contravenes freedom of conscience. It is entirely inappropriate for the Court to argue that someone must exit their profession for choosing to exercise their freedom of conscience – this is an argument the European Court of Human Rights rightly rejected years ago.“ 

“Morning-after pill”: abortifacient effect 

In addition to other side effects, the morning-after pill has a potential abortifacient effect.

“No one should be forced to take an action that clearly contradicts their conscience – especially when it comes to life and death. Any pharmacist or doctor who experiences coercion because of this is welcome to reach out to our team. Together we can defend freedom of conscience. A free state committed to basic human rights should never allow what amounts to a professional ban on the grounds of conscience,” Böllmann concluded.  

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Lent pro-life volunteers alarmed as Germany considers UK-style censorship zones to criminalise help and prayer near abortion organisations 

  • New draft law would introduce censorship zones in Germany for behaviour that could be perceived as “confusing” or “disturbing” – potentially including prayer
  • Asked about the frequency of “harassment” incidents at abortion facilities that would justify the introduction of censorship zones, the government admitted: “The federal government does not have any concrete numerical findings.”
  • German lawyer Dr. Felix Böllmann: “The German government wants to ban something, but doesn’t know what or why”

Berlin (15 February 2024) – During Lent, pro-life volunteers again set to the streets to pray for women and their unborn children. In Germany, however, a new bill plans to introduce vaguely defined censorship zones, banning behaviour that could be perceived as “confusing” or “disturbing” within 100 Meters of abortion organizations with fines up to 5,000€.

The bill has already caused confusion due to its vague wording and disputed necessity. In response to a parliamentary question seeking information on how, when, and where problematic incidents of hindrance or harassment near abortion facilities occurred, the responsible Ministry recently admitted: “The federal government does not have any concrete numerical findings” that would support the need for such a far-reaching bill.

“Thoughtcrimes” in the UK as a warning example

Whereas harassment is already illegal, free speech advocates warn that the language of the bill could criminalise a simple offer of help made to women in crisis pregnancies, as well as prayer. In the UK, where censorship zones have already been introduced, charitable volunteer Isabel Vaughan-Spruce was arrested for praying silently in her head near an abortion facility, as seen in a viral video. With support from ADF International, Vaughan-Spruce was acquitted in court; but two further individuals currently await trial for the same “thoughtcrime”. ADF International is supporting their legal defence.

“The right to peacefully pray is protected by international and national law. No matter one’s opinion on abortion, everyone suffers when we start to censor the right to speak freely, pray, or engage in consensual conversations.  The federal government wants to ban something but doesn’t know what or why. This law doesn’t ban “confusion”, it creates more of it – both for citizens trying to understand the law and police officers who will have to enforce any vague new prohibitions,” noted Dr. Felix Böllmann, German lawyer and Director of European Advocacy for ADF International.

The draft bill is currently with the Federal Council and is still open for amendments. It will be voted on in the parliament.

A new video features ADF International spokesperson Ludwig Brühl explaining the detrimental effects of censorship zones: “The government wants to ban certain opinions in an area the size of almost five football pitches.

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Federal minister Lisa Paus, who is pushing for the bill, said: “if you harass people with expressions of opinion that they clearly don’t want to hear, then this will become an offence punishable with a fine of up to €5,000.” Brühl disagrees: “Of course harassment is rightly prohibited – and has been for a long time. But this is just an excuse to marginalize, punish and censor certain opinions. Pro-life volunteers are there to pray, or to offer information about help available to women who would like to consider other options than abortion.”

ADF International conducts global advocacy for free speech. In the UK and Germany, ADF International lawyers have successfully supported several pro-life volunteers who faced criminal proceedings for their silent prayers.

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German government announces draft law introducing censorship zones around abortion-related facilities, fines up to 5,000€

Pavica und Felix
  • Proposed bill would criminalize charity volunteers praying and offering help, including vague ban on words, signs, and messages that could be potentially “confusing”
  • Legal expert Dr. Felix Böllmann: “Any form of harassment is obviously already forbidden. Peaceful prayer and offers of help, however, are strongly protected under the law”.

BERLIN (29 January 2024) – A new draft bill, announced last week by Germany’s Federal Family Minister Lisa Paus (Green Party), would introduce fines of up to 5,000€ ($5,500) for peaceful expression on public streets near abortion-related facilities. The bill would seek to create nationwide censorship zones around the facilities, criminalising messages that could be subjectively understood as “disturbing” or “confusing,” with no legal clarity as to how those terms are to be interpreted. Harassment is already fully illegal, independent of the proposed new law, which would target peaceful expression. The Federal Cabinet approved the bill last week. It will now move through the Bundesrat (Federal Council), which can introduce amendments, followed by the legislative process, including three readings in the Bundestag (Parliament).  

The UK Parliament adopted “buffer zone” legislation in 2023, expected to come into force throughout all of England and Wales soon. Existing zones under local laws already have resulted in numerous human rights violations including police interrogations, arrests, fines and criminal proceedings for silent prayer on the public street near abortion facilities, essentially resulting in “thought-crime” prosecutions. Currently, army veteran Adam Smith-Connor is awaiting trial for silent prayer in Bournemouth, England. 

Germany’s proposed new law would be in direct contravention to a 2023 decision from the country’s top administrative court upholding the freedom of assembly across the street from an abortion facility. The ruling affirmed the rights of Pavica Vojnović and her 40 Days for Life prayer group, which conducted silent prayer vigils on the public street in Pforzheim, Germany. Such an exercise of basic human rights would likely run afoul of the proposed new legislation.   

“Peaceful gatherings, prayer and offers of help should never be banned. The plans of the German government are alarming—not only do they put blanket restrictions on fundamental freedoms, but also they weaken civil society’s engagement for the protection of the right to life. Any form of harassment is obviously forbidden. But censorship zones are not pro-choice, they are no-choice and have no place in a free and democratic society,” said Dr. Felix Böllmann, German lawyer and Director of European Advocacy at ADF International.  

Bill contradicts court rulings 

In recent years, ADF International has supported the legal defense of pro-life volunteers in Germany who exercised their right to pray peacefully, including in silence, in front of abortion-related facilities. Germany’s top administration court confirmed that blanket bans on prayer gatherings are impermissible. According to the court, there is no “right to be buffered from dissenting opinions”. The new bill goes far beyond criminalising already illegal harassment to propose blanket bans on peaceful and fully legal activities such as prayer or offers of help.  

The draft bill thus contradicts standing court ruling upholding freedom of assembly and free expression on the public street in the vicinity of an abortion-related facility absent manifest infringements of third party rights.  

Restricting free expression supports abortion lobby 

“Standing law in Germany obliges the state and civil society to protect unborn life. Committed pro-life individuals must not be criminalized for the peaceful expression of their convictions. Every human being has dignity and a right to life, from the moment of conception. The state and citizens should work together to protect life. Instead, people with civil courage to uphold the fundamental right to life are now being deterred, and even potentially criminalised, for their commitment,” said Ludwig Brühl, German Communications Officer for ADF International. 

“We stand with the right of every person, including peaceful pro-life advocates, to freely express their convictions. The freedoms of assembly, opinion, and religion benefit all people. That is why we are defending these core human rights from the encroaching plans of lobby organizations and ideologues,” concluded Dr Felix Böllmann. 

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40 Days for Life group rejoices as court rules in favor of right to pray in the vicinity of abortion counseling facility

Pavica outside of the court

“Every human life is valuable and deserves protection. I am heartened that we will be able to resume our prayer vigils in support of women and their unborn children in the place where we think it makes the most sense. It is a great relief that the court has recognized our fundamental freedoms,” said Pavica Vojnović.

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