The repeal of Roe v. Wade on the 24th June in the United States brought to light the fact that reactionary currents of thought are actually capable of destroying rights that had previously been taken for granted.
By removing the federal right to abortion, many realised how powerful the law can be and how fleeting freedom can become. Immediately, a wave of concern swept through France, where there is an ever-growing share of far-right elected politicians who give weight to some very conservative ideas. In reaction to this legal upheaval, President Emmanuel Macron tweeted that “abortion is a fundamental right for all women [and that] it must be protected”. Most importantly, three legal proposals aiming to enshrine the right to abortion in the Constitution have been tabled by parliamentarians.
While nearly 81% of French people (according to an IFOP poll) would be in favour of constitutionalising the right to abortion, this ambition continues to be debated, and its realisation has proven to be a real ordeal. How can this be explained?
First of all, some historical background. On the 20th December 1974, the Veil Law was adopted by the two chambers of the French Parliament (the National Assembly and the Senate). This law decriminalised abortion, making it legal to practise. Today, this right is not questioned by any political party – at least not formally, since some members of the populist National Rally have expressed their reluctance.
However, despite previous attempts, it has failed to be included in the French Constitution. In 2018 and 2019 for instance, leftist political forces made two attempts to constitutionalise it – but these initiatives were rejected by the majority party (LREM, now Renaissance).
Law proposals and a right-leaning senate
The events of June 2022 have once again sparked the debate. In the National Assembly, Aurore Bergé (president of the majority group, Renaissance) and NUPES (a leftist union) have brought forward parliamentary initiatives to enshrine abortion in the Constitution. During the committee sessions, NUPES and the majority vote for each other’s proposals – NUPES’ was debated on the 24th November and the second debate will take place on the 28th.
In the Senate, the ecologists, socialists and communists produced a joint text which was drafted by the ecologist senator Mélanie Vogel and co-signed by 120 senators from six different groups. The three texts propose to add Article 66-2 to the Constitution, which would protect abortion and come just after the one constitutionally prohibiting the death penalty. The legal process then requires that the Senate and the Assembly vote on the text(s); this gives a veto right to both Chambers.
Furthermore, in the event that both chambers vote for the same text, a referendum would then have to be held. The French people would either approve or reject the constitutionalisation of the law, as outlined by Article 89 of the Constitution. NUPES’s proposal, proposed by LFI MP Mathilde Panot, was accepted by the National Assembly last Thursday.
Structurally right-leaning, the upper Senate is composed mainly of right-wing or centre-wing elected representatives, who unfortunately but unsurprisingly rejected Vogel’s cross-partisan proposal on the 19th October. There is therefore little chance that they will accept Panot’s proposal. The right-wing president of the Senate Republicans, Bruno Retailleau, referring to the majority’s desire to constitutionalise the right to abortion, said that “in order to mask its inability to solve the country’s real problems, the majority is inventing fictitious ones”. For the right-wing Senate, then, which apparently does not believe that it is better to be safe than sorry, the right to abortion in France is not threatened.
This stance, which holds back social progress and implies that rightist representatives do not view guaranteeing abortion access as a priority, raises another question: what is the nature of the French Constitution? Should it only be an instruction manual for the functioning of political institutions, and therefore a rigid series of rules to be applied? Or should it be capable of conveying values, and therefore public policy norms?
Protecting particular rights so that they are not easily flouted in the future by a potential law and thus creating a sort of fundamental freedoms list, as exists in the UK, is not in the essence of the French Constitution. The latter is mostly codified and, since it is difficult to add a constitutional law, rather rigid. However, over the last twenty years, the constitutionalisation of certain laws suggests that a more flexible Constitution is looking more likely: in 1999, the obligation of parity was added to the Constitution, with a precautionary principle similarly added in 2005 as well as the environmental charter. In 2007, the death penalty was formally abolished.
Another way to achieve constitutionalisation
In reality, these laws became constitutional ones in 1999, 2005 and 2007 not because of voting in the Chambers or organised referendums, but because they were the outcome of draft legislations. There is indeed a second way of amending the Constitution: the government can propose draft legislation or a bill which, if passed by three-fifths of all parliamentarians combined (senators and MPs), will result in constitutionalisation.
In short, constitutionalising the right to abortion is much more feasible than the current parliamentary dilemma would have us believe. All that it would take is for the government to decide to prioritise the protection of abortion rights – in short, to take responsibility for the situation, despite a busy agenda (especially with its current immigration bill proposal).
Despite the National Assembly’s vote, it is up to President Macron and the PM Élisabeth Borne to take up the issue. It would undoubtedly improve their societal record, help to overcome the national left-right divide as well as the government’s reluctance to legislate under the influence of American current events, and signify their disagreement with the conservative backsliding on this issue observed within the EU.
While PM Borne stated that “the government will strongly support this law proposal”, it is hoped that her eventual bill will be a strong one.