Constitutionalizing the right to abortion is not political opportunism

Recently, Baptiste Charvin wrote on this blog that the right to abortion has become the subject of political instrumentalization in France. In his view, it illustrates a general phenomenon of ‘constitutional desacralization’ and underlines the division the French people are experiencing, ‘despite being governed by a Constitution that enshrines a set of values that should be shared by all.’ I argue that the French parliamentary debate on the right to abortion is anything but a phenomenon of recent political opportunism. Instead, it reflects – for once – a majority opinion, not the division of French society.

Charvin mourns that parliamentarians should better have refrained ‘from blind and unconditional support for drafts proposed by their party when such additions to the constitution are at stake.’ Indeed, the constitutional bill only guarantees women the freedom to resort to voluntary termination of pregnancy. Ordinary laws establish the conditions under which women may exercise this freedom. In other words, the constitutional bill does not provide for an unconditional right to abortion – a fact that may also be explained by French constitutional culture. The French Constitution itself contains no catalog of fundamental rights and freedoms. Hence, including a specific individual freedom in the constitutional text is without precedent. Even though ordinary laws can still restrict the constitutionally guaranteed freedom to voluntary termination of pregnancy, the requirements for such restrictions increase. Therefore, the constitutionalization we are witnessing may not be qualified as ‘naïve.’

The issue of abortion in public and parliamentary debate in France

In France, the debate on the legal categorization of abortion reached its first turning point in the 1970s. From 1970 onwards, women began to demonstrate in favor of legalizing abortion. According to article 317 of the Penal Code from 1810, abortion was punished not as a felony but as a misdemeanor. In 1972, women’s rights activist Gisèle Halimi defended a young girl and her mother who had been accused of abortion and abortion aid, respectively (the ‘Bobigny trial’). Halimi, who later explicitly stated that abortion must be a right (p. 14), turned the proceedings (which ended with the young girl’s acquittal and her mother being ordered to pay 500 francs) into a political stage. Crucially, Halimi’s arguments in the Bobigny trial influenced the reform of the penal code under the Republican President Valéry Giscard d’Estaing two years later. In 1974, Giscard d’Estaings’ Minister of Health, Simone Veil, gave a virulent, widely known speech before the National Assembly (p. 11 et seq.) to convince the Gaullist-Republican majority of her reform project. The ‘Veil law,’ which legalized abortion, came into force in January 1975. At a national tribute to Gisèle Halimi on 8 March 2023, President Macron pledged to constitutionalize women’s freedom to have an abortion.

French public opinion on abortion rights today

With his pledge, President Macron builds on a parliamentary debate that had already begun during the last legislative term in 2017. With the start of the current term, this debate took more shape. In September and October 2022, the two Houses of Parliament, the National Assembly and the Senate, each tabled a proposal for a constitutional bill to protect and guarantee the fundamental right to abortion and contraception. In addition to this constitutional debate, the National Advisory Commission on Human Rights (CNCDH) published an official opinion in which it expressed its support for the constitutionalization of ‘abortion as a universal human right.’ With this position, the CNCDH is in line with other public bodies that have previously expressed their opinion on the topic. Further, in its report, the CNCDH cited several recent opinion polls, which show that more than 80% of the French people are in favor of enshrining the right to abortion in the Constitution and that 77% of the respondents from all across the political spectrum consider such a step to be ‘useful.’

The absence of a catalog of individual rights and freedoms in the French Constitution

Despite this near-consensus in public opinion, the parliamentary debate on the constitutional bill was long and did not result in an unconditional — or absolute — right to abortion (as proposed by the National Assembly) to be enshrined in the Constitution.

According to Article 89 para. 2 of the French Constitution, a constitutional bill must be passed by the two Houses of Parliament in identical terms. Reaching a parliamentary consensus is particularly difficult when a new individual right or freedom is to be introduced. This is because France’s constitutional culture and the structure of the French Constitution make it difficult to locate and formulate any such right or freedom.

To provide more background: As of today, the French Constitution does not contain any title devoted to individual rights and freedoms. Article 1 states that the French Republic shall ensure the equality of all citizens before the law without distinction of origin, race, or religion. In 2008, a second paragraph was added, specifying that the law promotes equal access for women and men to electoral mandates and elective functions as well as to professional and social responsibilities. While this more recent amendment to the Constitution strengthens the legal position of women, individual rights and freedoms are contained in other texts of constitutional value. Said texts include the Declaration of the Rights of Man and of the Citizen of 1789 (confirmed and completed by the Preamble to the 1946 Constitution) and the Charter of the Environment of 2004. The Preamble to the current Constitution declares that the French people are bound by this body of historical texts – the ‘constitutional bloc,’ in the words of Louis Favoreu and Claude Émeri.

Where to locate an individual freedom in the constitutional text?

The peculiar design of the constitutional system as regards individual rights and freedoms – namely, a Constitution that includes a direct reference only to the principle of equality and, apart from that, principally consists of references to other historically significant texts – explains why it was so difficult to reach an agreement on where to enshrine a constitutional right to abortion.

The initial proposal made by the National Assembly was to introduce Article 66-2 into the Constitution (congruent with a proposal in 2019). Said Article would have been located in Title VIII, devoted to the judicial authority. It would thus have followed Article 66 (stating that no one may be arbitrarily detained and that the judicial authority – guardian of individual freedom – ensures respect for this principle) and Article 66-1 (abolishing the death penalty). Yet, given that the right to abortion is not intimately linked to the conditions under which the state exercises its system of penalties, the inclusion of the new right under Title VIII seemed inappropriate.

The modified version by the Senate now provides for the constitutional bill to be included in Article 34 of the Constitution (the location already chosen in the Senate’s 2017 constitutional bill). Article 34, which determines the scope of the legislator’s powers – as opposed to those of the executive – provides, inter alia, that the law shall lay down rules concerning civic rights and the exercise of fundamental (public) freedoms granted to citizens. The reference to an individual right or freedom protected by the Constitution seems far more coherent in this context.

The substantive form of protection: Is a right better than an individual freedom?

Initially, the two chambers also disagreed on the (substantive) form of protection to be granted in relation to abortion. The National Assembly’s version of the constitutional bill stated that ‘No one may interfere with the right to abortion and contraception. The law shall guarantee all persons who so request free and effective access to these rights.’ The version amended by the Senate now provides only that ‘The law shall determine the conditions under which a woman’s freedom to resort to voluntary termination of pregnancy is exercised.’

The constitutional bill thus explicitly grants pregnant women the freedom to have a voluntary termination of pregnancy – a freedom that has already been recognized by the French Constitutional Council. Said freedom is derived from Article 2 of the Declaration of 1789 (general principle of individual freedom). Still, the bill is unprecedented, given that – for the first time – a concrete individual freedom is enshrined in the text of the Constitution.

In his article, Charvin argues that ‘if the constituent had sought to enshrine and guarantee a woman’s freedom to have an abortion, it would have referred to a ‘right to’ (implying a positive obligation of the State) instead of a mere ‘freedom of’ (…). This attempt at constitutionalizing a woman’s freedom to have an abortion is marred by two illusions: first, the alterability of the supreme text.  What can be done can also be undone; and second, that constitutionalization equates to providing material means for a woman to have an abortion.’

However, I do not agree with Charvin’s analysis for the following reason: Explicitly laying down an individual freedom in the constitutional text does not lead to different legal consequences than granting a specific right. In both cases, the aim is to ensure that the individual decision to act or not to act is protected from state intervention. This does not necessarily and automatically result in an active duty of the state to act – irrespective of whether a right or a freedom is enshrined in the Constitution. Put differently: The state’s duty to respect the protected behavior does not arise directly from the chosen form of protection but from the hierarchy of norms. Therefore, enshrining a right to abortion in the Constitution would not have meant that it cannot be concretized or limited by ordinary law (an example would be the period during which an abortion can be performed).

The enshrinement of a constitutional freedom leads to strict requirements for any limitation

Indeed, the protection afforded to women in the constitutional bill is in line with the French system of fundamental freedoms. Article 4 of the Declaration from 1789 specifies that ‘Freedom consists in being able to do everything that does not harm others: thus, the exercise of the natural rights of each man has no limits other than those which ensure the enjoyment of these same rights by the other members of society. These limits can only be determined by law.’

Hence, it does not seem naïve or dangerous to expressly allow the legislator to determine the conditions under which the freedom may be exercised. Crucially, granting the legislator this margin of maneuver does not call the constitutionally guaranteed freedom into question. On the contrary, the legislator is bound to respect the freedoms enshrined in the Constitution – irrespective of whether compliance is deemed politically desirable or not. Any limitation imposed on a constitutional freedom must be justified and may be reviewed by the Constitutional Council by means of a constitutionality review before or after the law comes into force.

Members of parliament are well aware of this constraint: Since the day the Senate submitted the amended constitutional bill to the National Assembly for rereading, some members of parliament, particularly Republicans, have proposed a number of amendments to constitutionalize the limits on the constitutional freedom. Even though these proposals have little chance of succeeding, they once again illustrate the legal and political uncertainties about what it means exactly to enshrine the freedom to have an abortion in the Constitution.

Not so easy to be undone: The constitutional text as a protective shield against populism

The French debate on the legal protection of women wishing to resort to abortion has regained considerable momentum in 2022 after the decision of the U.S. Supreme Court to overrule Roe v. Wade in Dobbs v. Jackson Women’s Health Organization.

In turbulent political times, it seems more lucid than hasty to enshrine the societal achievements of recent decades – in the concrete case, the liberal stance on the question of whether to allow abortions ­– in the French Constitution. The crucial lesson here is: Even if political majorities change, the constitutional text cannot be changed as easily as ordinary law or (constitutional) case law. The Constitution should thus not be seen as a victim of political instrumentalization but as a protective shield against populism.