The constitutionalisation of abortion

On 8 March 2024, Emmanuel Macron, the French President, announced the nineteenth
amendment to the 1958 Constitution. Access to abortion is now set in stone in the French
constitution. The President of the National Assembly, the Prime Minister and the Minister of
Justice all welcomed this victory. At a time when the right to abortion is under threat, France is
setting an example for the world, a great defender of women’s right to self-determination.
The overturn of Roe v. Wade by the US Supreme Court explains which ends the right to
abortion upheld for decades explains the worries and concerns of feminists and political groups
defending access to abortion. This ‘success’ for human rights, voted for by the majority party
and the President of the Republic, needs to be qualified.

In fact, it was on the initiative of the CNCDH (National Consultative Commission on Human
Rights) to put this issue on the government’s agenda. Until then, the fight to enshrine the right to
abortion in the constitution had been led by other political groups. Mathilde Panot, chairwoman
of the France Insoumise group in the National Assembly, and Mélanie Vogel, an ecologist
senator, have both tabled bills to ensure access to abortion in the constitution.

The CNCDH has expressed these concerns about the rise of pro-life movements in France,
illustrated by the setting up of fake freephone numbers encouraging people seeking support for
abortion not to do so.

Secondly, the exponential increase in the budgets and funding of these pro-life associations
raises questions. Finally, within the European Union, Poland and Hungary have also
undermined the legal conditions for access to abortion and other abortion methods. The
CNCDH therefore proposed that access to abortion should be included in Article 1 of the
Constitution or added to the constitutional corpus. It also suggested that the wording should
read ‘the right to have access to abortion’ rather than ‘the freedom of all women to have access
to abortion’. This recommendation was not followed.

The Senate and the National Assembly have to agree on a version of the text down to the last
comma in order to have it enshrined in the constitution at the congress. The National Assembly
has opted to enshrine the right to abortion by a majority vote. The upper house, on the other
hand, opted for a freedom rather than a right. The two proposals were brought together,
resulting in guaranteed freedom of access to abortion for all women, enshrined in Article 34 of
the Constitution.

The Syndicat des Avocats de France (French Lawyers’ Union) has stepped up to denounce the
cosmetic inscription of access to abortion. Indeed, the guarantee of a freedom is legally weaker
than that of a right that must be respected.

Article 34 then sets out a list of freedoms in brackets, so that freedom of access to abortion is
squeezed in between other references. It can be overturned or restrained much more easily
than if access to abortion had been enshrined in the Constitution as a right. The CNCDH agrees
and deplores the fact that its recommendations, as an advisory commission, have not been
followed. AFP (Agency France Press) also puts into question the President of the Republic’s
statement that the right has been firmly enshrined in the Constitution, as this is not the case.
The entry into the constitution does not guarantee better protection of the right of access to
abortion.

However, it should be noted that there is no precedent for this on an international scale,
particularly at the European level. Until now, the CJEU (Court of Justice of the European Union)
had not issued any recommendations concerning the inclusion of access to abortion in the
constitution. From the point of view of the associations, positions differ as to the reception of this
relative constitutionalisation. The Family Planning organization is satisfied, noting that access to
abortion has been progressively recognized by the law through successive stages.
Nevertheless, this does not mean that the fight for a better recognition of abortion access in the
law, and even more so in the constitution, has come to an end. In fact, the text failed to mention
access to transgender men by mentioning ‘women’, which also makes this constitutionalisation
imperfect. The failure to mention a group concerned by access to abortion is problematic
because it is a marker of the exclusive and non-inclusive nature of the enshrinement of this
access to abortion in the constitution.

We are therefore not satisfied with this half-hearted constitutionalisation at a time when access
to abortion is under threat in several countries within and outside the European Union. In
addition, the political forces in favour of going back on the Veil law are getting organised and are
raising fears that abortion conditions in France will deteriorate in the mid-term.

However, this inclusion in the Constitution is a step forward for the rights of women and gender
and sex minorities, over and above political calculations. Indeed, it now seems easier to have
the right of access to abortion enshrined in the Constitution, at least if political forces and civil
society continue to mobilise in favour of this right, which has universal and constitutional value.
Thus, ASSEDEL encourages dynamic and progressive groups not to settle for this partial
victory. They must continue to fight to clearly secure the right to abortion and access to abortion
for all, either in the first article of the constitution or within the framework of fundamental laws.