The Enshrinement of Abortion in the French Constitution. Kairos: Dobbs as a window of opportunity? (Part I)

by | Mar 14, 2024

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About Stéphanie Hennette Vauchez

Stéphanie Hennette Vauchez is a professor of law at Université Paris Nanterre and a senior fellow of the Institut universitaire de France. She served as the director of the Centre de recherches et d’études sur les droits fondamentaux (CREDOF) from 2015 to 2023. Her work lies on the field of human rights theory, with a particular focus on issues of religious freedom and religious non discriminations and on the interactions of law and gender.

On 8 March 2024, the sealing ceremony for the 25th amendment to the French Constitution of 1958 took place at the ministry of Justice in Paris, marking the inclusion in the Constitution of the “guaranteed freedom” for women to abortion. This two-part blog examines the enshrinement of abortion in the French Constitution. In the first part, the blog offers recounts of the parliamentary debates that led to the final vote on March 4. The second part argues that, while the amendment can be celebrated as a pioneering move, caution is also in order in terms of assessing the exact scope of the amendment.

The US Supreme Court’s Dobbs decision of June 2022 created shockwaves through large parts of the world, sending millions of American women back to a bygone era as several 19th century abortion laws were automatically reinstated following the overturning of the 1973 Roe v Wade ruling, which had read constitutional protection for women’s right to abortion in the federal Constitution. This event resounded all the more loudly that it echoed other comparable setbacks – in Poland, in Hungary and elsewhere.

The constitutionalisation of abortion had already been considered in 2017 and 2019 in France, but without success. The setback created by the Dobbs ruling thus provided an opportunity to be seized. In the National Assembly, a cross-party agreement enabled the adoption of a bill that would have included the following wording in Article 66-2 of the Constitution, immediately following the constitutional elevation of individual liberty: “the law guarantees the effectiveness of and equal access to the right to voluntary interruption of pregnancy.”

When the matter was turned to the Senate, the second chamber accepted the principle of amending the Constitution but adopted a much weaker language. It proposed to include in Article 34 of the Constitution, a provision that lists the domains of competence reserved to the legislator, the statement that “the law determines the conditions under which a woman’s freedom to terminate her pregnancy is exercised”. This version appeared to be so watered down when compared to the initial vote that it even raised the question of its usefulness. Indeed, what would have been the point of including in Article 34 of the Constitution that the law “determines the modalities” of abortion? This was a truism, for the modalities of abortion have always been determined by the legislator.

Thus began a process of compromise between the two versions of the proposed amendment. The final bill, presented by the Government on 12 December 2023, would revise Article 34 of the Constitution by defining abortion as a field of legislative competence and essentially reproduced the language adopted by the Senate – speaking, notably, of a ‘freedom’ rather than a ‘right’ to abortion. However, the word “guarantee” was borrowed from the initial version adopted by the National Assembly. Hence the version that was voted by the joint session on 4 March 2024: “the law determines the conditions under which the freedom guaranteed to a woman to have recourse to a voluntary interruption of pregnancy is exercised.” Everything thus hinges, more or less, on the word “guaranteed.” It is the term that allowed compromise, which makes it possible to distance the reservations, if not the criticism, generated by the wording of the February 2023 Senate bill.

The occasion was historic, and understandably so: enshrining abortion in a constitutional text in 2024 is no mean feat – neither symbolically, nor technically. Symbolically, this makes the French constitution the first one to guarantee the freedom to have recourse to an abortion. The global silence of constitutions on this matter reveals the invisibilisation of reproductive issues by the modern constitutional paradigm. The only three constitutions to contain an explicit reference to abortion are those of Kenya (Art. 26§4), Somalia (Art. 15§5), and Eswatini (Art. 15§5); and they do so precisely to prohibit it almost entirely. Some of the more recent constitutions enshrine the notion of reproductive rights (Bolivia for instance), or the right to choose to have children (Slovenia for instance), but without explicitly guaranteeing abortion (see generally). It is against this backdrop that the pioneering nature of the French amendment needs to be read. The inclusion of reproductive issues in the Constitution affirms their profoundly political nature (political communities depend, radically and existentially, on reproductive work for their own perpetuation) based on a notion of equal citizenship (procreative freedom conditions access to all the dimensions –civil, political, social– of citizenship).

The amendment also has technical legal value, by affording increased protection to the freedom to have an abortion. In Dobbs, the US Supreme Court ruled that the reasoning of Roe v Wade fifty years earlier was “egregiously wrong” and that, in fact, the Constitution had nothing to say about abortion – and therefore, that there was no constitutional protection for abortion. It is safe to say that the constitutional revision that has just been adopted in France conjures up such a setback: abortion has clearly become a constitutional issue; the Constitution requires that the law respects women’s “guaranteed freedom” to have an abortion. The exact scope of that guarantee is, however, cause for caution, as Part II of this blog explains.

The author thanks AOC Media, where a longer version of this blogpost was published in French on March 7, 2024, for allowing this edited translation.

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