This article belongs to the debate » Comparative Legal Perspectives on Abortion
16 February 2023

Small Country, Big Hurdles

Abortion in Liechtenstein

Women’s rights have long had a hard time in the Principality of Liechtenstein. Despite numerous initiatives, the founding of women’s organisations, an (unsuccessful) complaint to the Constitutional Court and an activist action before the Council of Europe in Strasbourg, women’s suffrage was only introduced at the national level in the year 1984. Reasons given for the late introduction of women’s suffrage include the rural structure of the country with its patriarchal, conservative and Catholic image of women in the first half of the 20th century, as well as the fact that women were excluded from higher education for a long time, which hampered them from political self-organisation and mobilisation. Not only the right to vote, but also the right to abortion was long denied to women in Liechtenstein – and still faces big hurdles.

The old law: abortion prohibited at home and abroad

Liechtenstein’s abortion law was for a long time determined by the Criminal Code of 1987, which entered into force in 1989 and was not amended in this aspect until 2015. Under the old legal system, both the pregnant person and the person performing the abortion committed a criminal offence. According to § 96 of the old Criminal Code, an abortion was only exempt from punishment if there was an unavoidable serious risk to life or serious damage to the health of the pregnant person. The physician who terminates the pregnancy with the pregnant person’s consent could be punished with imprisonment for up to one year, a person who is not a physician for up to three years. The pregnant person could be sent to prison for up to one year.

This conservative regime left no room for reproductive self-determination. Starting with the completion of nidation, a free choice about one’s own body and future was no longer possible. The Liechtenstein criminal law allowed the termination of pregnancy only in very limited emergency situations. The criminalisation of abortion was further sharpened by the so-called “Weltrechtsprinzip” (the principle of universal jurisdiction) according to § 64 para. 1 No. 8 of the old Criminal Code: A pregnant person resident in Liechtenstein was also punished if the abortion took place abroad, even if it was legal there. Hence, the pregnant person could not even decide to cross the border and have the pregnancy terminated in Switzerland or Austria.

The popular initiatives: a divided society on the abortion issue

The legal handling of abortion has always been a highly controversial issue in Liechtenstein. Over the past two decades, several popular initiatives and parliamentary postulates have sought a new solution for the “Schwangerschaftskonflikt” (“pregnancy conflict”). The social and political debate revolved around the protection of unborn life on the one side and the protection of the pregnant person’s self-determination on the other.

The popular initiative “Für das Leben” (“For Life”) from 2005, brought forward by conservative Catholic circles, proposed a constitutional amendment in favour of the protection of unborn life. The state would have been given the responsibility to protect human life from conception to natural death. However, this popular initiative was clearly rejected by the Liechtenstein people – also due to the fact that other aspects of health and life impacted by the constant progress in science and technology would have been called into question. Instead, the counter-proposal of the parliament was adopted at the end of 2005: The guarantee of human dignity in Article 27bis and the right to life in Article 27ter were newly enshrined in the constitution (which is also relatively late compared to other European constitutions).

Six years later, in 2011, a second popular vote was held which, unlike the 2005 vote, would have improved the situation of a pregnant person. The working group “Schwangerschaftskonflikte”, represented by Carmen Büchel-Malik and Helen Konzett Bargetze, submitted the popular initiative “Hilfe statt Strafe” (“Help instead of punishment”) aiming to amend the Criminal Code: An abortion carried out by a physician within the first twelve weeks of the beginning of pregnancy shall be exempt from punishment, provided that the obligatory counselling has taken place beforehand. The initiators had realised that in reality, despite the far-reaching prohibition, a person who wants to terminate the pregnancy is very likely to have an abortion anyway. The proposed law aimed to provide them with competent, open-ended counselling and transparent support, while keeping the protection of unborn life and the avoidance of abortion as the primary goal.

This popular initiative stirred up emotions and even put the entire political system to the test. The heated debate in 2011 arose against the background that Liechtenstein has two sovereigns: According to Article 2 of the constitution, the power of the State is embodied in both the Reigning Prince and the People. Every law therefore requires not only the approval of the parliament (Article 65) or, in the case of popular initiatives, the approval of the citizens (Article 66[6]), but also the sanction of the Reigning Prince (Article 9). In the run-up to the popular vote on the initiative “Hilfe statt Strafe”, the Prince, or rather his son as the signing deputy, threatened to refuse to sanction the new law. This pronouncement by the monarch presumably led to a lower voter turnout. Especially those who would have potentially voted in favour considered the ballot pointless or no longer necessary. In the voting itself, however, the actions of the Princely House are no longer likely to have played a decisive role. Of the 11,026 votes, 5,264 (47,7 %) were for and 5,762 (52,3 %) against the initiative. This example illustrates two things: Firstly, in a small monarchical country like Liechtenstein, the opinion of the monarch on an ethical issue such as abortion may significantly influence the outcome of a popular vote, and secondly, ultimately only a few people (here: 498) can tip the balance in favour of a legal and thus a social change.

The current legal situation: permitted for the pregnant person, prohibited for physicians

One month after the negative vote of the Liechtenstein people, a discussion in parliament initiated by seven members from different parties revealed that in particular the following aspects related to abortion require closer examination: the protection of (unborn) life, the abolishment of the principle of universal jurisdiction, the decriminalisation of abortion, the legal protection for counsellors, and support measures for a person considering abortion. In its statement on this parliamentary initiative, the government came to the conclusion that it is no longer appropriate to punish the termination of a pregnancy abroad. In parliament, though, the proposal to abolish the principle of universal jurisdiction did not prevail – but only a few months later, in autumn 2012, another postulate was submitted with the aim of improving the situation of pregnant persons.

Discussions resumed and eventually led to a change in the law in 2015. In its draft legislation, the government was aware that, on the one hand, society demands greater protection for a pregnant person and, on the other hand, the second sovereign, the Prince, has ethical and moral concerns that limit the scope of action under criminal law. The government also took into account the 2011 popular vote in which the Liechtenstein people rejected the legalisation of abortion within the first months of pregnancy, as provided for in several European countries. For that reason, a different approach was proposed, namely, the expansion of the grounds suspending the criminal liability of abortion. In addition, the principle of universal jurisdiction should be abolished for lack of usefulness and enforceability.

Since the revision of the Criminal Code in 2015, a pregnant person (“woman” in the Code) in Liechtenstein may – for the first time ever – legally terminate the pregnancy. The abortion must be performed by a physician, otherwise the pregnant person will be punished with imprisonment of up to one year or, since an amendment in 2019, with a monetary penalty of up to 720 daily rates (§ 96). However, anyone, even a physician, acts criminally if they terminate, with the consent of the pregnant person, the pregnancy – with a prison sentence of up to one year or a monetary penalty of up to 720 daily rates, or, if not a physician, with imprisonment of up to three years. Consequently, pregnant persons are indeed allowed to have an abortion, but they will not find anyone in Liechtenstein who will perform an abortion, as this person would be liable to prosecution. Thus, abortions remain de facto prohibited in Liechtenstein – which, according to the travaux préparatoires, is also the aim of the revised criminal law.

A Liechtenstein physician may only terminate a pregnancy in very restrictive cases. According to § 96(4) of the Criminal Code, an abortion is exempt from punishment if it is necessary to avert serious danger to the life or serious damage to the health of the pregnant person that cannot be averted otherwise, or the pregnant person was under-age at the time of conception, or if the pregnancy is the result of an act of sexual violence. Finally, it is prohibited to offer one’s own services or services of another person to the public and with the purpose of promoting the termination of pregnancies (§ 98a).

Despite some relaxation, Liechtenstein’s abortion law remains conservative and one of the strictest in Europe. It is therefore regularly criticised at the international level. At the request of the Committee on the Elimination of Discrimination against Women (CEDAW), the Liechtenstein government provided, in its fifth periodic report from 2018, information on the “pregnancy conflict” by referring to the revision of the Criminal Code entering into force in 2015. Based on this report, CEDAW recommended to harmonise the abortion provisions of the Criminal Code with a view to legalise abortion for both the pregnant person and the health-care providers in the case of sexual abuses, risk to life or health of the pregnant person or severe impairment of the fetus, and to decriminalise it in all other cases. In its follow-up report from 2021, Liechtenstein concluded that its law already contains some of the adjustments set out in the recommendation and that further liberalisation is not currently planned.

The practice: counselling at home, abortions abroad

Although abortion law in Liechtenstein is particularly restrictive, there has never been a criminal conviction (however, apparently, proceedings have already been initiated for the criminal offence of abortion). Nevertheless, every year dozens of pregnant persons are confronted with the decision to terminate the pregnancy and directly experience the consequences of this regulation. There are, obviously, no official figures on how many pregnant persons terminate the pregnancy, but it is estimated that there are about 40 abortions per year – which, in relation to the number of inhabitants (almost 40,000), is slightly less than in Germany and Switzerland. Since the four Liechtenstein gynaecologists are not allowed to terminate a pregnancy – apart from exceptional situations – a pregnant person who wishes to do so has to travel to neighbouring Switzerland or Austria. In this case, the patient will have to bear the costs (e.g. in Switzerland between 600 and 3,000 Swiss francs, depending on the method and canton). Liechtenstein health insurance covers, by law, only the costs of health checks and midwifery services in the case of a medically indicated termination of pregnancy under § 96(4) of the Criminal Code.

Before deciding on an abortion, a pregnant person in Liechtenstein may seek advice at home. Since 2006, the institution, founded and financed by the Princely Hheouse of Liechtenstein, has been offering counselling on pregnancy and birth, including possible paths in the event of an unplanned pregnancy. Only recently, at the end of 2022, the website was launched, initiated by an anonymous group of friends from Liechtenstein, offering information on counselling, nearby clinics that perform abortions, associated costs and the legal situation. Moreover, the non-governmental association infra offers information and counselling for women.

The future: still a long way to decriminalisation

Liechtenstein is far away from a comprehensive decriminalisation of abortion. The termination of pregnancy is still regulated by the Criminal Code and the person who performs the abortion will be prosecuted. Only the pregnant person acts legally when terminating an unplanned or unwanted pregnancy. But it took until 2015 for pregnant persons to be granted a (limited) right to self-determination, and there is still a lack of sufficient legal, medical and social support. In a difficult and psychologically stressful situation, pregnant persons must seek treatment abroad – not because they want to, but because they have to.

According to the Liechtenstein government in its annual human rights report of 2021, no further liberalisation is currently planned. Thus, it can be assumed that Liechtenstein will not follow Germany’s recent legislative change and repeal the criminalisation of abortion advertising in the near future. And so Liechtenstein’s abortion law will continue – most recently, in light of the recent US Supreme Court decision overturning the right to abortion, here and there – to attract media attention.