The Head of State announced that a draft law revising the Constitution would be “prepared in the coming months”.
The announcement was made on the occasion of International Women’s Rights Day, during a national tribute to feminist lawyer Gisèle Halimi, Wednesday March 8. Emmanuel Macron has announced his desire to register in the Constitution the “freedom” to resort to voluntary termination of pregnancy (IVG), as part of its future institutional reform. “The progress resulting from the parliamentary debates, on the initiative of the National Assembly then enlightened by the Senate, will allow, I hope, to include in our fundamental text this freedom within the framework of the bill revising our Constitution , which will be prepared in the coming months”said the head of state at the Paris courthouse.
Several feminist associations welcomed this announcement by the President of the Republic. In a press release, the Women’s Foundation thus mentioned a “victory for feminist associations which have been asking for the constitutionalization of abortion for years”. “Feminists around the world are watching France”To reacted on its side the Family Planning. Franceinfo returns to the questions that arise after this decision by Emmanuel Macron.
1 What does the text currently being examined by Parliament propose?
The National Assembly and then the Senate examined a proposal for a specific constitutional law on abortion, presented by parliamentarians. This must be approved in identical terms by the National Assembly and the Senate, then be submitted to a referendum. At the end of November, the National Assembly had adopted at first reading, by 337 votes for, 32 against and 18 abstentions, the proposal to include in the Constitution – through a new article, 66.2 – the following wording: “The law guarantees the effectiveness and equal access to the right to voluntary termination of pregnancy.”
At the beginning of February, the Senate in turn adopted, by 166 votes against 152, the inclusion in the Constitution of the “women’s freedom” to resort to abortion. The text adopted at first reading by the senators, which must return to the National Assembly, abandons the notion of “right” and proposes a different inscription in the Constitution. It aims to complete Article 34, which concerns the general definition of the law and its scope, with this formula: “The law determines the conditions under which a woman’s freedom to terminate her pregnancy is exercised”. According to Senator LR Philippe Bas, this formulation would formalize in the fundamental law a freedom “already recognized by the decision of the Constitutional Council of June 27, 2001, which gave it constitutional value.”
After these two votes, the two chambers had to adopt the proposed constitutional law in precisely the same terms, then this adoption had to be validated by referendum. “The need for this recourse to the referendum represents a strong constraint for the final outcome of the constitutional bills”, underlines the Senate on its site.
2 How is Emmanuel Macron’s proposal different?
The Head of State’s announcement relates to a draft constitutional law. Unlike a proposed constitutional law, this bill does not require the organization of a referendum. It is in particular through this that the seven-year term of the President of the Republic was abandoned in favor of the quinquennium, in 2000. “ It is easy for the president to take up the proposal to avoid the vagaries of a referendum which always represents a risk”, explained to franceinfo the constitutionalist Jean-Philippe Derosier, after the vote of the Assembly.
A constitutional bill can be voted on by Parliament meeting in Congress, with a majority of 3/5ths. This option therefore promises to be simpler to guarantee the registration of the “freedom” to resort to abortion in the Constitution. However, this would not be a constitutional bill dealing specifically with this “freedom”but of “project of a law amending our Constitution”, as Emmanuel Macron said on Wednesday. This new path is not without risk, because of the difficulties in getting vast institutional reforms passed.
Because this constitutional bill could integrate major institutional reforms. Several tracks are mentioned: a revision of the division of the regions, the return to the seven-year term, a new electoral calendar, or the introduction of proportional representation. Emmanuel Macron discreetly reopened this project in early February, presented by his camp as one of the major post-pension reform projects.
3 What does the inclusion in the Constitution of “freedom” rather than the “right” to abortion imply?
In his statement on Wednesday, Emmanuel Macron used the term “freedom” retained by the Senate, an option “more consensual”, said his entourage to franceinfo. Does the choice of this term imply a significant difference for the respect of the right to abortion, compared to the choice to include the term “right” in the Constitution? Asked about this by Le Monde (article reserved for subscribers), the professor of public law Anne Levade, president of the French association of constitutional law, explains that the notion of “right” to abortion implies “a right of claim, a positive obligation which would require the State to do everything possible to ensure that it is actually exercised”.
The formulation favored by the Senate, around a “freedom”, “in reality comes to consecrate textually what is already the case law of the Constitutional Council on the subject”, continues the professor with the evening newspaper. “Each time he had to examine a text relating to abortion, he did so by linking the use of abortion to article 4 of the Declaration of the Rights of Man and of the Citizen. This asserts that “Freedom consists in being able to do anything that does not harm others”. The Senate, with its wording, “reinforce” the case law of the Constitutional Council but “does not enshrine a right which imposes obligations on the State”, is developing Anne Levade with the World. Specialists interviewed by franceinfo recall, at the same time, that the notions of “freedom” and of “right” are strongly protected by the Constitution.