CHRONIC. Should the right to abortion be constitutionalized?

Clément Viktorovitch returns every week to the debates and political issues. Sunday January 28: the question of the right to abortion. Since Wednesday, Parliament has been examining a bill aimed at enshrining in the Constitution the “guaranteed freedom” to have recourse to abortion.

Everything went so well! We first had a first bill aimed at including abortion in the Constitution, which had been voted on by the two Assemblies – certainly in different terms, it had therefore not been definitively adopted, but the Senate had despite everything ended up giving his approval. Then, this week, the National Assembly finally examined the bill carried directly by the government, with a draft synthesizing the two previous versions. When, suddenly… Gérard Larcher, the LR president of the Senate, arrived. On Tuesday, January 23, he was the guest of Franceinfo, we asked him if he was in favor of the text. Answer : “No. I think that abortion is not threatened in our country. If the right to abortion was threatened, believe me I would fight for it to be maintained. I think that the Constitution is not a catalog of social and societal rights.”

So, he certainly clarified that this was only a strictly personal position, but given the power of influence that Gérard Larcher has on the High Assembly, we understand that nothing is decided.

The highly questionable arguments of the President of the Senate

Let’s start with the first: the right to abortion would not, in France, “not threatened”. This is largely true… But it could be true in the future! The spectacular turnaround of the American Supreme Court, in June 2022, or the decline in the right to abortion in Poland, since the 1990s, proves that nothing is ever taken for granted. However, one of the roles of a Constitution is precisely to try to guarantee freedoms against the vicissitudes of history.

As for the idea that the basic law should not be “a catalog of social and societal rights”, well… yes, it is! The preamble to our Constitution simply avoids listing them. It simply refers to public freedoms and social rights guaranteed by the Declaration of 1789, the preamble to the Constitution of 1946 and the Environmental Charter of 2004. But, if we want to recognize new rights, which were not yet covered by these texts, they must be recorded somewhere. This somewhere is the 1958 Constitution itself.

Would including abortion in the Constitution provide a better guarantee for women’s rights? This question is the subject of intense legal debate. The initial wording, that of the bill tabled by Mathilde Panot, was undeniably protective of women’s rights, since it provided that the law must guarantee both “the effectiveness and equal access to the right to ‘Abortion’. Conversely, the text adopted by the Senate was much less ambitious. He was content to say “The law determines the conditions under which a woman’s freedom to terminate her pregnancy is exercised.” As public law professor Stéphanie Hennette-Vauchez points out, this is a very incomplete protection, since it could leave the door open to the fact that the law sets conditions so restrictive that they would come back in the facts to call into question the practical possibility of abortion.

Real legal issues around the text

The wording ultimately adopted by the government is a sort of summary: “The law determines the conditions under which the freedom guaranteed to women to have recourse is exercised.” It still does not ensure “the effectiveness and equal access to the right to abortion”, on the other hand, we find the concept of “guaranteed freedom.” Moreover, it is this word, precisely, which could arouse the reluctance of the Senate.

The Council of State, in its opinion of December 12, considered that the wording chosen by the government was in fact not necessarily less protective, from a legal point of view, than that initially proposed by Mathilde Panot. Some constitutionalists, like Anne Levade, even believe that the right to abortion would already be, in any case, protected by the jurisprudence of the Constitutional Council.

That being said, we can retort that it would always be better for a text to be voted on, and as tight as possible, in order to protect the right to abortion as much as possible against possible future attacks. And then, above all, the issues in this debate are not only legal: they are also, and perhaps above all, symbolic. As jurist Anne-Charlène Bezzina points out, with this law, France would be the first country in the world to include the right to abortion in its fundamental law. It would thus regain its role as a beacon of rights and freedoms, which it knew how to be in 1789 or in 1946, and failed to embody subsequently – notably on the question of the abolition of the death penalty, so late in our country. At a time when the right to abortion is being called into question even within the European Union, there would be, I believe, a political grandeur that would ennoble our old State.