Photo: Stephane De Sakutin/Agence France Presse Une vue générale du Sénat français, à Paris, lors d’un débat ayant précédé mercredi le vote sur un projet gouvernemental visant à inscrire la liberté d’avorter dans la Constitution française.
Historic reform or simple political maneuver ? As of Monday, the freedom to abort should be enshrined in the French Constitution. A world first, according to constitutional experts. After having been approved by the National Assembly then by the Senate, this inscription should be approved by the elected representatives of the two chambers meeting in Congress in Versailles on Monday. The text must be voted on by a three-fifths majority, which should hardly pose a problem, Emmanuel Macron's initiative having obtained the support of a large transpartisan majority.
On Monday, barring a surprise, Congress should therefore include in Article 34 of the Constitution, which lists certain prerogatives of laws adopted by Parliament, that “the law determines the conditions under which the freedom guaranteed to the woman to have recourse to a voluntary termination of pregnancy [IVG] is exercised.
Unlike many countries, including the United States, in France, the right to abortion has been a consensus across all political parties since the adoption of the Veil law in 1975. This is 'elsewhere a right-wing majority led by Valéry Giscard d'Estaing who had it adopted.
US “Mimicry” ?
If no one contests the right to abortion, why include it in the Constitution ? We will remember that the French president made this proposal after in June 2022, the American Supreme Court had returned to the judgment Roe v. Wade, which required all states to guarantee the right to abortion up to 24 weeks after conception.
This is why Franche-Comté MP Annie Genevard opposed it. This reform, she says, aims to “respond to a problem that arises in the United States […]. This right is not threatened within our country.” It is “an initiative of an ideological nature which […] is a simple mimicry with the United States, where the question of abortion, unlike France, imposes itself in political life”, also wrote the historian and essayist Maxime Tandonnet in Le Figaro. Especially since in France, unlike the United States, this right is a decision of the national assembly and not a simple decision of the judges.
An argument which did not seem to convince the supporters of inclusion in the Constitution, also supported by 86% of French people, according to an IFOP survey from November 2022.
“France would be the first to include freedom of abortion in the Constitution, written in Le Mondelawyer Rachel-Flore Pardo. This would be a historic breakthrough that would send a powerful signal to women in the European Union and around the world. France would become a compass in terms of protecting women's rights and would show the way so that other States give this fundamental freedom all the required guarantees. »
On the contrary, for the philosopher Chantal Delsol, who spoke in Le Figaro, this amendment essentially aims to affirm “that the debate is closed; close the ban; we no longer discuss this subject, we no longer tolerate debate. It is a decision of intolerance.”
In the Senate, the debate largely focused on the wording of the text. While the proposal from the National Assembly spoke of the “right” to abortion, the Senate preferred to opt for the “freedom” of the woman to end her pregnancy. According to Senator Philippe Bas, the notion of “right” would offer a more maximal definition, while that of “freedom” would make it easier for the legislator to define the conditions and limits of its exercise. The Council of State judges that these two terms have “no different scope” and that, whatever the wording, the State will be able to set their limits. Elected officials finally agreed on a “guaranteed right” to abortion.
A “catalogue of rights”
Among elected officials, the main debate essentially pitted those in favor of constitutionalization against those who believed that this freedom had no place in the supreme law of the country. This was notably the opinion of the President of the Senate, Gérard Larcher, for whom the Constitution is not “a catalog of social and societal rights”. Which earned the senator from Yvelines a volley of green wood, including a platform in Madame Figaro relating a petition signed, among others, by the Nobel Prize winner Annie Ernaux and the actresses Sophie Marceau, Julie Gayet, Jeanne Balibar, Agnès Jaoui and Muriel Robin. According to them, “for women, nothing is ever acquired” and “French exceptionalism is a constant battle.”
The great French jurist Guy Carcassonne, now deceased, used to say that the “rule of law” had become “a bunch of rights” for a number of years. This point of view was particularly defended by the jurist Anne-Marie Le Pourhiet, according to whom “the Constitution is neither a Christmas tree nor a catalog”, but serves to define “the status of a State, setting the rules devolution, distribution and exercise of political power and determining its social contract in the service of the national interest”.
It would therefore not be the place to include specific rights guaranteed to minorities or certain groups of the population. According to her, this text is “pure display”, since the right to abortion already enjoys a constitutional guarantee by the jurisprudence of the Council of State.
A useless reform ?
“If the Constitutional Council were seized of a law prohibiting or significantly restricting the voluntary termination of pregnancy, written in La Croix la juriste Clotilde Brunetti-Pons, he would judge her on the basis of the block of constitutionality, not in conformity with the Constitution. »
An argument to which opponents respond that it is always easier to pass a law than to modify the Constitution. Even if the wording clearly specifies that the law “determines the conditions under which this abortion is carried out” and that it can therefore restrict or expand the practice as it sees fit.
“At a time when the right to abortion is undergoing regression in many countries, this vote is essential,” according to the president of Médecins du monde, Florence Rigal.
Among the opponents, doctors were concerned about the conscience clause which guarantees in France the right of health professionals not to participate in an abortion. The 1975 law states that “no midwife, no nurse, no medical assistant, whatever they may be, is required to assist in the termination of a pregnancy.” According to them, the disappearance of this conscience clause, which elected officials refused to include in the constitutional amendment, would cause numerous resignations, which would aggravate the shortage of medical personnel severely felt in several regions.
This is not the first time that elected officials have wished to include a new right in the French Constitution. During the 2018 and 2007 revisions, some wanted to engrave in golden letters the “right to water” or “equal opportunities”. No less than a hundred draft amendments had then seen the light of day.