Abortion in the Constitution: Private Bill Rejected by the Senate

21/10/2022

On Wednesday 19th October 2022, the Senators rejected, by 172 votes to 139, the private bill presented by the ecologist Senator Mélanie Vogel who wanted to register in the French constitution a “fundamental right for abortion and contraception”.

Like five previous private bills presented to both chambers, this private bill was put forward in reaction to the Dobbs vs Jackson decision by the United States Supreme Court, on 24th June 2022, which cancelled the 1973 Roe vs Wade ruling, thus deleting the recognition of a “right for abortion” at the federal level.

The debate

Signed by members of different groups within the Senate, the private bill was intended to reinforce the protection of the “right for abortion” by incorporating it in the French Constitution, in order to make it more difficult to rescind it at a future date. The private bill was supported by Eric Dupond-Moretti, the French Minister of Justice.

During the debate, Agnès Canayer, Senator from Les Républicains (LR) for Seine Maritime and reporter of the law commission, pointed out the useless and ineffective nature of the bill. According to her, “Registration of abortion would misrepresent the spirit of the Constitution and would open a Pandora’s box.” It is essential that the Constitution is not used as a “catalogue of rights” which would risk damaging the “protective role of the supreme authority”. The Senator recalled that the Constitution could only be modified for certain clearly identified reasons. Consequently, the right for abortion could not be justified, according to her, for any of these reasons. Another LR Senator, Muriel Jourda, warned about the risk of legislating “by reaction” and raised the question of the “narrow window of emotion”.

The difference of the situation prevailing in France and the United States was also raised during the debate, inasmuch as France is not a federal state. The decision by the US Supreme Court was aimed at the question of whether legislation on abortion should be governed by the federal state or the federated states, and it was decided that henceforth the federated states should legislate on abortion.

Other proposals at the French National Assembly

On the date when this private bill was being debated in the Senate, two other bills aimed at including abortion in the constitution are already planned in the French National Assembly. On 24th November, French members of parliament will examine the private bill presented by La France Insoumise (LFI) in the context of the parliamentary niche of that group. A few days later, a private bill presented by Aurore Bergé (Renaissance), supported by the presidential party, will be examined during the week of 28th November, and should be examined by the law commission on 9th November.

No less than 6 private bills have been registered to include abortion in the constitution. However, to date, there is no consensus on where this particular disposal should be included in the constitution (addition of an article 66-2 or inclusion in article 1 or 34), nor on its wording, which clearly illustrates the difficulties involved in its inclusion in the constitution.

During his statement, Eric Dupont-Moretti already announced that the Government would support all of the parliamentary initiatives to include the right for abortion in the constitution.

However, several jurists specialized in constitutional law expressed reservations on this constitutionalisation. Thus, in an interview in the La Croix periodical, professor Bertrand Mathieu stated in June that abortion is not a fundamental right, and that the recognition of a true “right for abortion” would lead to recognizing for women “an absolute right on the life of the foetus whereas until now the foetus always enjoyed constitutional protection, therefore threatening the “equilibrium” established by the 1975 law decriminalizing pregnancy termination. In an interview in Le Figaro published on 18th October, Jean-Eric Schoettl, ex-secretary general of the Constitutional Council wonders whether: “The authors of the constitutional private bill wish abortion to be totally free until the 9th month? One hopes not, even if their bill leads directly to it.”

This debate is occurring at the very moment when the latest figures on abortions published by DREES in September indicate not only that the number of abortions in France is stable year in year out, “around 225,000 per year” but also that the “overall rate of abortions is tending to increase and reached 15.5 abortions per 1000 women aged between 15 and 49 in 2021.

Can there be a right for pregnancy termination?

As far as Alliance VITA is concerned, the focus on the “right” for abortion, masks the true stakes at issue with abortions today. For Caroline Roux, deputy managing director, “by considering abortion merely as a right, we fail to consider the pressures – or the psychological violence – which lead to it in many cases” (La Croix, article, 28th June 2022). Financial reasons may also play a part, since a report by DREES in 2020 reported that women with modest means aborted more often. Finally, abortion is increasingly apparent as a marker of social inequality. It is quite astounding that in all the debates in the Senate, not a word was uttered on the subject of prevention and support for women in precarious situations.

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