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  • Maya Sgaravato-Grant

The triumph- and limitations- of France’s vote to enshrine abortion in the constitution

Jubilation filled the air across France on March 4 2024 as news channels announced the results of a parliamentary vote which would go down in history. France had become the first country to explicitly enshrine the right to voluntarily terminate a pregnancy in its constitution.

The road to this pronouncement was rocky. A similar constitutional amendment was first proposed in Parliament in 2017. But the issue was sidelined until the shock of the US Supreme Court’s decision to overturn Roe v Wade in 2022 ignited concerns about a major precedent having been set in rescinding women’s established rights, to which France may one day become a victim. A right explicitly enshrined in the French constitution is far more difficult to overturn than one written into common law. 

In the end, it was the motion tabled by representative Mathilde Panot, from the left-wing La France Insoumise party, which was selected for debate. Following a minor revision in the National Assembly, and a more substantial one in the Senate, the bill was taken up by the French government to avoid, for the sake of convenience, the national referendum required to change the constitution upon the initiative of an MP. The revised article was then approved by both chambers separately, before being ratified by an overwhelming majority of 780-72 in a joint session.

"For the French feminists who fought for the right to abort in the 70s, the eventual insertion of this aspiration into the constitution seemed like a pipe dream. In the same way, this victory in France gives hope to women fighting for their rights around the world that some degree of freedom is achievable."

Standing before a packed chamber, Ms Panot took advantage of the momentous occasion to address women around the world. “Your fight is ours”, she proclaimed. “This victory is yours.” If the United States abrogation of abortion rights set a precedent that reverberated around the world, France wishes to set a contrasting precedent of its own. For the French feminists who fought for the right to abort in the 70s, the eventual insertion of this aspiration into the constitution seemed like a pipe dream. In the same way, this victory in France gives hope to women fighting for their rights around the world that some degree of freedom is achievable.

However, the concealed reticence of many parliamentarians, and particularly of certain Senators, to take steps to ensure women’s ability to exercise their rights has led to a watering down of the constitutional article, leaving the primary contemporary threat to abortion access still intact. 

The bill was expected to come to nothing in the famously conservative Senate, with the Senate Law Commission rejecting it outright in advance of the debate. However, with 86% of the French population in favour of abortion rights, concerns arose regarding a potential backlash. As such, when Philippe Bas put forward a revision, Senators seized the opportunity to complicate the adoption of the amendment whilst minimising controversy.

The first aspect of Mr Bas’ revision replaced the ‘right’ to abort with a ‘liberty’ to do so, on the basis that only the latter would permit a balance to be struck between access to abortion and other constitutional imperatives. This is false, something which Mr Bas, a legal expert of great stature, most likely knew. In the French Parliament, any amendments made to a bill by one chamber are subject to approval by the other. In replacing ‘right’ with the vaguer term ‘liberty’, Mr Bas not only delayed the adoption of the bill, but was potentially hoping that the National Assembly would refuse to adopt such a watered-down text, in a tactic similar to that used by the Senate to trigger the abandonment of an environmental bill in 2021.

This tactic, however, proved unsuccessful, with the Council of State clarifying that ‘liberty’ in this context would be considered synonymous with ‘right’ upon probing by the National Assembly, leading the latter to adopt it without further complications. 

However, the second revision made by Mr Bas had much greater implications. The bill put forward by Ms Panot originally read as follows: “no one may interfere with the right to voluntary interruption of pregnancy and contraception. The law guarantees everyone who requests it free and effective access to these rights”. Mr Bas’ amendment modified this language. Instead, it became: “the law determines the conditions by which is exercised the liberty of women to have recourse to an abortion, which is guaranteed”. Whilst the wording of the original proposal seemed to assign the government an obligation to take active measures to provide abortion services to any person in need, the measure adopted only seems to allot women the negative right to not be prevented from accessing abortion. This is a particularly salient issue at a time in which the doctor-patient ratio in France worsens every year, and in which the far-right are preparing to assume power. With only 2.9% of GPs and gynaecologists, and 3.5% of midwives offering the procedure, and with 130 abortion clinics having closed over the last decade, this omission is deeply concerning. As an advisor in the National Assembly argued, “a Constitutional Council in which two-thirds of members were appointed by Marine Le Pen… would probably have no difficulty in deciding that if only one clinic performs abortions in France, then freedom of access to abortion is guaranteed, and everything is fine”. Whilst most of Le Pen’s party voted for the bill, not wishing to alienate themselves from the French electorate, it is conceivable that if National Rally wins the next election, as expected, more conservative currents will come to the forefront, making such a scenario, whilst unlikely, plausible. 

This being said, it is important not to underestimate the importance of this achievement.  It is difficult to argue that a document intended to set the principles and rules by which a democratic country is to abide achieves its purpose if it does not guarantee one of the most important freedoms half of the population could possess. For a long time, the citizen envisaged in the text of the French constitution was male. The passing of the reform changes this. And although the meaning of a “guaranteed freedom” will remain open to judicial interpretation, and a future anti-democratic government would have no qualms with discarding the constitution, on March 5, women in France woke up with their liberties slightly more protected than they had been the day before.

Image: Flickr | United Nations Photo  - UN PHOTO | Eskinder Debebe



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