Three questions on a possible inclusion of a right to abortion in the Constitution

As an illustration of the tasty aphorism of Edgar Faure, assuring, as an old political adventurer, that “it is not the weather vanes that turn but the wind”, a gust coming this Friday from the United States seems to have decided the presidential party to change of cap. Aurore Bergé, president of the Renaissance group in the National Assembly, will indeed table a bill aimed at enshrining the right to abortion in the French Constitution, which the former LREM party had refused to do. twice during the previous five-year term. But times have changed, the judges of the Supreme Court of the United States returned to the American States the power to authorize or prohibit the use of abortion (voluntary termination of pregnancy), considering that the Constitution had no not to comment on the matter. So, in order to protect itself from all bad vibes, France intends to sanctify this right. But how and for what consequences?

  • How can the government enshrine the right to abortion in the Constitution?

To ratify a draft revision of the Constitution, the President of the Republic has two procedural options. Either he submits the text to the French people by referendum, after having had it adopted by the National Assembly and the Senate, or he brings together the two chambers in Congress at Versailles and submits the text to parliamentarians, which must be voted on by a majority to 3/5th.

Both scenarios were used under the Fifth Republic. For recourse to referendum, let us quote the revision of November 6, 1962, establishing the election of the President of the Republic by direct universal suffrage. The “yes” had won at 62%. More recently, on July 21, 2008, Congress voted in Versailles in favor of the constitutional law on the modernization of institutions, notably prohibiting the President of the Republic from serving more than two consecutive terms. Since French public opinion and the elected representatives are overwhelmingly in favor of abortion, the probability of failure remains low.

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  • What would that change?

Since the adoption of the Veil law on January 17, 1975, abortion has been decriminalized in France and constitutes a fundamental freedom of constitutional value. Nevertheless, including it effectively in the Constitution would have the merit of making it more difficult, or quite simply dissuading any future attempts to repeal it, this right passing under the illustrious protection of the Constitutional Council. This change in status would protect a little more the latest developments in this area, like the law of March 3, 2022, which recently extended from 12 to 14 weeks the time limit for appealing for a voluntary termination of pregnancy.

However, there remains a question at the border between law and philosophy. To speak of a “right” to abortion would mean that women have a right to life over the embryo, but the Veil law makes it clear that abortion is not a right but a measure of protection. within the framework of individual freedom. “We are here faced with a real problem of philosophy of law: how can we enshrine in a constitution a right that does not exist beforehand?”, Considers in this respect, in an interview with the newspaper The crossAnne-Marie Le Pourhiet, professor of public law at Rennes 1 University and vice-president of the French Association of Constitutional Law.

  • Why is France Insoumise crying out for political opportunism?

If the vast majority of deputies would approve a proposal for constitutional revision on the question, several elected officials deplore the opportunism of the presidential majority and some cry out for political recovery. La France Insoumise recalls in particular that in July 2018, it proposed to insert the right to abortion in the Constitution, which was rejected by 100 LREM deputies, including Gabriel Attal and Olivia Grégoire, currently members of the government.

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Worse, Yaël Braun-Pivet, on the pole to climb the perch of the National Assembly, had, at the time, considered that this protection was “a constant fight in our public policies”, and that an inscription in the Constitution was “neither necessary nor useful”. However, she may well have to defend the opposite position in a few days. Rebelote in 2019, when left-wing deputies carried the same constitutional law proposal, and the presidential party passed its turn, not including the initiative on the agenda. Not resentful, the former socialist deputy Luc Carvounas declared, on franceinfo, to be ready to rummage through the boxes to find the text, which would put an end “to any obstacle to the use of abortion”.


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