Should the right to abortion be enshrined in the Constitution? The question divides the French political class. The decision of the Supreme Court of the United States to revoke the case law “Roe v. Wade”, which guaranteed the constitutional right to abortion in all American states, has indeed repercussions as far as France. The Ensemble! group, like the Nupes intergroup, have tabled a bill aimed at enshrining the right to abortion in the Constitution.
Progress for women’s rights or symbolic posture? For Jean-François Copé, constitutionalizing the right to voluntary termination of pregnancy (abortion) is useless. “Lhe Constitution has already integrated it by the block of constitutionality of the Declaration of the rights of man. If we had to come back to this, then we would be in a dictatorship”, estimated the mayor Les Républicains de Meaux, Monday, June 27 on France Inter. But is he telling the truth or “fake”?
The “block of constitutionality” of which Jean-François Copé speaks is at the top of the pyramid of French law. The expression designates “all the texts and principles with constitutional value that the laws must respect”, sums up the site vie-publique.fr. It is composed, among other things, of the Constitution of 1958 and the Declaration of the Rights of Man and of the Citizen of 1789. The Constitutional Council ensures that the laws passed are in conformity with this block of constitutionality. But the Declaration of the Rights of Man and of the Citizen does it already include the right to abortion, as Jean-François Copé asserts?
“As such, you won’t find the term abortion or abortion anywhere,” explains to franceinfo the constitutionalist Didier Maus. Indeed, the Declaration of the Rights of Man and of the Citizen does not include specific rights, but fundamental principles. The right to abortion is therefore not explicitly protected by the block of constitutionality.
“On the other hand, the right to abortion is guaranteed by the jurisprudence of the Constitutional Council”underlines the expert. Concretely, even if the right to abortion is not enshrined in the Constitution, the Elders consider that this right stems from the application of the fundamental principles described in the block of constitutionality.
“The right to abortion does not have constitutional value, but the Constitutional Council has ruled that this right is in accordance with the Declaration of Human Rights on the constitutional basis which is the freedom of women, in application of article 2 of the Declaration of the Rights of Man and of the Citizen”, explains Anne Levade, constitutional expert. This provides that “The goal of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security and resistance to oppression.”
“In France, the right to abortion is guaranteed by the Veil law” of 1975, recalls Anne Levade. However, continues the specialist, “contrary to case law which is a decision subject to interpretation, the law more strongly guarantees the right to abortion”. “Especially since the Veil law has been reinforced by other laws and each of these laws has been submitted to the Constitutional Council, which has, each time, reaffirmed that the right to abortion is in accordance with the Constitution.she adds.
In practice, “when certain rights are recognized as conforming to the Constitution, there is no turning back”, observes Didier Maus. However, the constitutionalization of the right to abortion would not offer “no unlimited guarantee in time”, judge the constitutionalist. Because, even if the right to abortion were soon to be enshrined in the Constitution, it could also be erased later. “It would be more difficult to change, it’s true, but it wouldn’t be impossible”, notes the expert. Indeed, modifying the fundamental law requires either the consent of three-fifths of the parliamentarians gathered in Congress, or a referendum, recalls the Constitutional Council.
“Constitutionalizing abortion is the wrong problem”, slice Anne Levade. For the constitutionalist, such a measure would not prevent Parliament from limiting the application of the law in the future. Indeed, even if the right to abortion were explicitly enshrined in the Constitution, it would not be possible to include the provisions that govern this right and which are regularly subject to change, according to the specialist.
The latest, adopted on February 23sets the legal deadline for having an abortion at 14 weeks of pregnancy. If parliamentarians can extend the legal duration of recourse to abortion, they could also reduce it drastically. This would limit, in fact, the possibility of abortion, despite the inclusion of the right to abortion in the Constitution.