With proposals to protect voluntary termination of pregnancy (abortion) in the Constitution and their current treatment in the Senate, the fundamental distinction between rights and freedoms comes to the surface. The current table is as follows. Where in its proposal the Assembly intends to create an article 66-2 of the Constitution placing abortion among the guarantees provided by the judicial authority, in the same way as the prohibition of arbitrary arrests (article 66) or the abolition of the death penalty (article 66-1), the Senate moves this text within the competences referred to in article 34 which refers to the freedom of the legislator: “The law establishes the rules concerning civil rights and the fundamental guarantees granted to citizens. »
These amendments raise questions when the Constitution does not include any list of rights and freedoms. It would be a French innovation, since in the world, abortion is either decriminalized or even prohibited in the name of respect for the right to life.
The American turmoil
Still from a legal point of view, the current situation seems however clear: the constitutional case law of 2001 and the renewed legislative and regulatory framework, wishing “strengthen the right to abortion”, recognizes that women have the possibility of requesting the termination of their pregnancy. The turmoil caused by the American Supreme Court in 2022 (Dobbs judgment) questions the irreversibility of our protection system.
The concern is such that deputies and senators have tabled several proposals for constitutional revision, including one adopted by the National Assembly in the form of the right to abortion, transformed by the Senate into women’s freedom. The goal is to prevent, by a constitutional guarantee, that one can annihilate a faculty understood as personal and inviolable. The right to abortion, qualified as “global project” guaranteeing the coverage of care, then becomes a simple possibility left to the free choice of the woman.
The Senate does not block
From a political and parliamentary point of view, the Senate does not block the discussion, but opens the debate on abortion through the recognized fundamental values. After all, as Mr. Bertrand Mathieu asserts, a Constitution is also intended “to translate into law the values specific to a political community”.
At this level, the freedom supported by the Senate seems to be that which grants autonomy to women, protecting their will over their bodies. However, if autonomy as recognition of freedom is an essential principle, particularly in the medical context, does it suppose an absolute power of self-determination? Lawyers will certainly answer that the norm sets the framework in which the individual decides where moral reflection leaves open discussion. By wanting to include abortion in the Constitution, deputies and senators must arbitrate between autonomy, freedom and dignity, around which abortion is tossed around.
Strong reactions
Let us add that if this debate always arouses strong reactions, it is also because, when we intervene in the field of reproductive health, we enter the sphere of women’s intimacy and sexuality and , finally, the body of the woman is integrated into the constitutional text as a particular subject on which the supreme norm should watch.
Finally, isn’t protecting women’s health by guaranteeing them access to competent health services, so that they can terminate a pregnancy, a return to a trend that was thought to be over, that of the legal reification of the female body, again at the center of all attention? There is no doubt that the discussion will then lead to articulating the freedom of women with that of health professionals, in order to preserve the freedom of conscience of doctors. Montesquieu wrote that the law should not be changed “only with a trembling hand”. In view of the consequences of a constitutional revision on this subject, what would he advise us?