The Head of State thus wishes to make difficult any attempt by the legislator to undermine or suppress this right currently recognized in an ordinary law.
The announcement was eagerly awaited by feminist activists and associations. Emmanuel Macron declared, Sunday October 29, that the “freedom of women to resort to voluntary termination of pregnancy (abortion) was going to be engraved in the Constitution to make it a right “irreversible” in 2024. Concretely, “the draft constitutional law will be sent to the Council of State this week and presented to the Council of Ministers by the end of the year”specified the head of state on social networks.
Based on the work of parliamentarians and associations, the draft constitutional law will be sent to the Council of State this week and presented to the Council of Ministers by the end of the year.
In 2024, women’s freedom to have an abortion will be irreversible. https://t.co/4uSoIJu310
— Emmanuel Macron (@EmmanuelMacron) October 29, 2023
The Head of State thus wishes to make difficult any attempt by the legislator to undermine or suppress this right currently recognized in an ordinary law. The president of Family Planning, Sarah Durocher, also welcomed Sunday on Franceinfo a “victory of the feminists”which would allow “to include abortion as a fundamental right” and to show that “constitutionalizing the right to abortion is possible” to other countries in the world. Franceinfo looks at this major announcement which has yet to materialize.
1 Why go through a constitutional bill?
This decision follows parliamentary work begun in 2022. The leader of the La France insoumise deputies, Mathilde Panot, had a constitutional bill adopted in November 2022 at first reading in the National Assembly, guaranteeing the “right to voluntary termination of pregnancy”. The Senate in turn approved it in February, but by registering the “women’s freedom” to resort to abortion, rather than its “right”.
“The vote in the Senate showed that a path was possible to adopt a constitutional revision”assured the Elysée on Sunday, according to comments reported by AFP.
“Both chambers were converging on something that would allow us to revise the Constitution.”
On March 8, on the occasion of International Women’s Rights Day, Emmanuel Macron, had announced its desire to register in the Constitution “freedom” to resort to abortion, as part of its future institutional reform. Once the senatorial elections had passed at the end of September, the President of the Republic reaffirmed on October 4 his wish to see this promise come to fruition.
Unlike a parliamentary initiative proposal, a bill to revise the Constitution does not necessarily have to be submitted to a referendum at the end: it can also be approved by a three-fifths majority of the two chambers of parliament meeting in Congress. A referendum on the subject risked giving a disproportionate platform to opponents of the text, the Elysée explained on Sunday to justify the choice of a constitutional bill, according to AFP.
2 What is the difference between “right” and “freedom” to have an abortion?
The President of the Republic used the terminology adopted by the Senate, favoring the term “freedom” instead of “right”. Does the choice of this term imply an important difference for respecting the right to abortion? Asked about this by The world, public law professor Anne Levade, president emeritus of the French Association of Constitutional Law, responds that the notion of “right” to abortion generates “a right of claim, a positive obligation which requires the State to do everything possible to ensure that it is effectively exercised.”
The formulation favored by the Senate, around a “freedom”, “in reality comes to textually establish what is already the jurisprudence of the Constitutional Council on the subject”, continues the professor to the World. “Each time he has had to examine a text relating to abortion, he has done so by linking the use of abortion to article 4 of the Declaration of the Rights of Man and of the Citizen. ” He asserts that “Freedom consists of being able to do anything that does not harm others.”
The Senate, with its formulation, “reinforces in some way” the jurisprudence of the Constitutional Council, summarizes Anne Levade. For their part, specialists interviewed by franceinfo recall, at the same time, that the notions of “freedom” and “right” are both strongly protected by the Constitution.
3 Does this modification of the Constitution have a chance of succeeding?
A three-fifths majority of the Senate and the National Assembly, meeting in Congress, is required for a constitutional bill to be considered adopted. Currently, there are 577 deputies and 348 senators, or 925 parliamentarians. We therefore need 60% of this total, or on paper 555 parliamentarians, for the text, which will be carried by the Minister of Justice, Eric Dupond-Moretti, to pass.
However, 166 senators voted for the inclusion in the Constitution of the freedom to resort to abortion and 337 deputies voted at first reading for the constitutionalization of the right to abortion. That is a total of 503 parliamentarians in favor of this project, far from the 555 required. “We do not need 555 votes, but 60% of the votes cast”however, nuance environmentalist senator Mélanie Vogel, very committed to this development. “I am counting on the fact that there we had 73% between the Assembly and the Senate”she says.
Nevertheless, an advisor to the executive reminds franceinfo, “when we convene a Congress, the attendance rate is generally close to 100%”. The threshold of 555 elected officials is therefore not just hypothetical. However, this advisor displays relative confidence in the outcome of the vote, explaining that “all political constraints were taken into account upstream”. Furthermore, the wording chosen, close to that of the Senate, is the result of“a real compromise”.
According to his calculations, if we add the votes of the presidential majority, Nupes and Liot on the Assembly side, we total 414 votes. On the Senate side, we arrive at 137 votes, adding the votes of the left, the radicals and the presidential majority. Either a base of “purists” by 551 votes. It would therefore be necessary, by banking on 100% attendance, to seek four additional votes. Which should easily be the case with centrist voices or Les Républicains. “The fact that we are going through a constitutional bill and that we are very respectful of the work of the Senate can allow us to bring on board a good part of the centrists and a third of the LR senators”, anticipates the same advisor.
“I am optimistic about our ability to convince the undecided. Voting against a bill during a niche in the middle of the night is not the same thing as being against it during a Congress”supports the boss of socialist senators, Patrick Kanner.
“Honestly, I would be surprised if the text did not pass. There will be media and popular pressure, in the good sense of the term, which will make a majority possible.”
Patrick Kanner, president of the PS group in the Senateat franceinfo
The text should arrive before Congress in spring 2024.