2024-01-27 08:00:00
Would the inclusion in the Constitution of the phrase “the law determines the conditions under which the freedom guaranteed to a woman to have recourse to a voluntary termination of pregnancy is exercised” change anything in the current state of the right ? Technically, no.
1) The ability to terminate a pregnancy cannot be conceived without legislative framework – and especially without defining a period beyond which the woman’s will is no longer sufficient to justify the act. We would not perform an abortion at eight months of amenorrhea. 2) It doesn’t matter whether we talk about “right” or “freedom”. The distinction – vague – does not carry the slightest practical consequence. 3) “Guaranteed”, the exercise of each freedom is guaranteed by principle: “Any Society in which the guarantee of rights is not ensured […] has no Constitution”, teaches the Declaration of Human Rights. We are justified in demanding effective and concrete enjoyment of the freedoms that are recognized to us. 4) This does not mean that they are “opposable”, here in the sense that a local medical structure should necessarily be offered to each woman requesting an abortion. The law alone could create this opposability, but Parliament does not have (nor will have) the obligation to do so 5) The freedom to abort must, like others, be reconciled with all the rights of the same rank, among which is, of course, the conscience clause of doctors. The “guarantee” offered to women does not carry any binding obligation for the medical profession. It is the freedom to use a practitioner willing to carry out the termination of pregnancy within the legal period that we intend to formalize; nothing more. 6) As in no matter what other area, it is up to the Constitutional Council to ensure that the “guarantee” remains one. A law would therefore be censored which disproportionately restricts the practical possibilities of abortion, for example by conditioning its recourse to certain hypotheses outside the field of free will (rape or incest) or by reducing its legal period to a bare minimum. .
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All this is already due. The Constitutional Council has several times placed the use of abortion under the protection of “women’s freedom”, which falls under the general regime of personal freedom. The project debated in Parliament neither advances nor retreats on any point. The Council of State has clearly shown this, in a high-ranking opinion.
But then, what’s the point? The worst reason would be to want to be “symbolic”. The Constitution is too serious a thing to be left to the all-consuming empire of political communication. Better a thousand times a tangible objective, and the one invoked by the authors of the text deserves attention: it is a question of making this freedom irreversible, postulating that the Constitutional Council, like the US Supreme Court, could one day change its mind and stop protecting it on the grounds that it is not set in stone.
The future is worrying
It is unlikely – due to a fundamental difference in legal culture and because he has never done anything like this – but it is not objectively impossible, just as it is not objectively impossible that the parliamentary majority of this country tends one day in a restrictive sense. Some – including the President of the Senate – present themselves as a shield, but it does not hold up. It is a (too) common disease of the political class to believe itself to be eternal and to read the Constitution in light of today’s context alone. In truth, the future is worrying and we know nothing about what the Constitutional Council and the forces in power will be like in ten or twenty years.
Let’s go. Preventive surgery only makes sense on an organism that is still relatively healthy. Constitutional barriers are not indestructible, but they remain difficult to break down. It is neither unreasonable nor useless to vote for this sanctuary text as it is, without arguing or playing the smartest game.
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