The Enshrinement of Abortion in the French Constitution. Phronesis: after the celebration, a call for caution (Part II)

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.

The first part of this blog examined the process that led to the amendment that enshrined abortion in the French Constitution. In this second part, it is argued that, while the amendment can be celebrated as a pioneering move thanks to the successful ways in which members of the Parliament have seized a historical window of opportunity, caution is also in order in terms of assessing the exact scope of the amendment.

Let us imagine that, tomorrow, the Parliament were to reduce the legal time frame for abortion from 14 to 12 weeks. Is it certain that the Conseil constitutionnel would declare such a law unconstitutional? It is difficult to be positively affirmative. Such a law could well be interpreted as fulfilling the constitutional mandate of “determining the modalities” by which freedom to resort to abortion is exercised; and it is not certain that the Conseil constitutionnel would rule that a two-week reduction of the legal time frame for abortion infringed the “guarantee” requirement. For the guarantee to be called into question, the law would probably have to (more) drastically restrict the deadline – to 6 weeks of pregnancy, for example, as is now the case in several American states, such as Florida or Iowa. It is also conceivable that a legislative reform calling into question the Social Security coverage of abortion would be struck down – although here again, it is impossible to determine with certainty the delisting threshold at which the Conseil constitutionnel would place the cursor: 90%? 50%? Less?

This is because the term “guarantee”, while playing a key role in the wording of the constitutional amendment, is also largely indeterminate; and because the Conseil constitutionnel is the sole master of the interpretation of the Constitution thus revised.

The indeterminacy of the word “guarantee” can, however, play in all directions. While it is not clear at what point a retreat from the current equilibrium of the legal regime of abortion would trigger constitutional censure, it is easy to imagine that the term will be the subject of mobilisation in the opposite direction. As it has been repeatedly pointed out in the 18 months since the first proposals for the constitutional amendment, it is often not the legal status of abortion that poses a problem in France, but rather effective access to abortion. Inequalities in access across the country are well-documented and have multiple causes: the policy of closing health care facilities in line with the managerial turn in public health policies, the under-funding of sexual health care centers, the devaluation of the act of abortion in the budgetary nomenclatures for the provision of health services, and so on. Under these conditions, the semantic leverage of “guaranteed freedom” will undoubtedly provide the basis for future proposals and legislative amendments aimed to reinforce effective access to abortion.

From this point of view, it must be conceded that, however historic the vote of 4 March 2024, the rationale underlying the amendment is not that of the consecration of an individual right. The sentence that was added to the Constitution was inserted in Article 34, and this is far from insignificant. Unlike many foreign constitutional texts of the same period (the German or the Italian ones, for example), the French Constitution of 1958 does not contain a section specifically devoted to the enunciation of fundamental rights. These are set out, primarily, in the preamble to the Constitution (which refers to the 1789 Declaration of the Rights of Man and of the Citizen, to all the social rights enshrined in the 1946 Constitution, and to the 2004 Charter of the Environment), as well as, subsidiarily, in various articles of the Constitution. However, a different choice was made with regards to abortion, since, by supplementing Article 34, the constitutional amendment is designed, first and foremost, to define the powers of the legislator.

The Constitution thus commands that it is for legislation – and only for legislation – to “determine the modalities” by which the freedom to resort to abortion is exercised. Admittedly, legislation cannot do anything in the area, precisely because the freedom to have an abortion is constitutionally “guaranteed”. But the enshrinement of this constitutionally “guaranteed freedom” only comes into play here as a second intention, as a consequence of the first gesture, which is indeed to define and require legislative competence. In that respect, it is not an individual right in the same way as, for instance, the right to “the free communication of ideas and of opinions” elevated by the 1789 Declaration, or the freedom to unionise, to strike, or the right to asylum elevated by the 1946 Preamble, or even, the right to be free from arbitrary detention (article 66 of the Constitution) or from capital punishment (article 66-1 of the Constitution).

On the evening of the final vote, the president of the National Assembly, Ms Braun-Pivet, celebrated the adoption of the constitutional amendment on social media by claiming that, by “a historic vote”, France had turned abortion into “a right”. The irony of the message cannot be lost to observers, given the energy that was put into securing that the amendment precisely avoid referring to a “right”, favoring the – allegedly less robust and thus more conducive to political compromise – term “liberty” instead, throughout the entire amendment process. Braun-Pivet’s words only testify to a very real discrepancy between the political discourse around the amendment and its actual legal wording. Only the future will endow this 25th amendment to the 1958 Constitution with its full and precise scope and meaning. For now, it can be read simultaneously as a mere conjuring of drastic setbacks, or a crystallisation of the existing legal abortion regime which is the result of 50 years of successive legislative interventions, or even – in the words of Braun-Pivet and others – as the elevation of a full-blown “right” to abortion. It now falls on the legislator to act on this newly explicit competence – under the power of judicial review.

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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