On 29th October 2023, President Macron announced that a bill to register abortion in the French Constitution would be submitted to the cabinet during December. According to information in La Tribune, the text to appear under article 34 of the constitution would be as follows: “The Law determines the conditions under which a woman’s freedom is exercised, which is guaranteed to her, to have recourse to an abortion“. Beyond the symbolic significance of the said addition in the constitution, the choice of the word “freedom” rather than “right” is causing debate. Does the choice of one rather than the other term in any way modify the impact of the registration in the constitution?
Reminder of the facts
In November 2022 a constitutional bill, which was adopted at its first reading by the French National Assembly provided that “the Law guarantees the effectivity and equal access to the right to resort to abortion“. The French Senate then adopted it under the following terms: “The Law determines the conditions under which women’s freedom to end their pregnancy may be exercised”.
Freedom, right: which definition?
According to Anne-Charlène Bezzina, Master of conferences in public law at Rouen University, “Freedom is a ‘faculty to’, it is a subjective notion, it is ‘I can resort to’. For example, with freedom of speech, if I wish to speak or publish, I do so, but I expect nothing in return. Whereas a ‘subjective right to’, suggests a credit: the State must guarantee it. That is the case with the right to strike for example.”
For the supporters of registration of a right, the word “freedom” does not go far enough.
According to Mathilde Philip-Gay, Professor of public law at Jean Moulin Lyon 3 university, “The right to abortion, is a guarantee that if a person so wishes or if it is necessary, they can proceed with an abortion. Freedom is guaranteed by Law, whereas a right must be guaranteed in itself.” According to her, although “the choice of the word “freedom” may be symbolically important – since it enables the term “abortion” to be registered in the Constitution – legally, there is no major difference” compared with the current situation.
This position is also supported by Jean-Marie Burguburu, a lawyer and President of the CNCDH (National Consultative Commission on Human Rights). In a notice adopted on 28th September 2023, the CNCDH states: “It is the right itself which must be established and not the power to legislate on the subject. The wording adopted must incorporate a “guarantee” in order to avoid any regression relative to the current state of the law. It must express a clear establishment of the right to wilfully terminate their pregnancy for any person who so wishes.”
In fact, the Constitution does not recognise any distinction between the notions of freedom and right.
According to constitutional standards, rights and freedom may only be exercised in the context of laws which regulate them. The Constitution affords equal protection to “the rights and freedoms which it guarantees” in particular through the possibility of raising a Priority Preliminary Ruling on Constitutionality (PPRC) under article 61-1. Furthermore, nothing in the Constitution indicates that the rights and freedoms which it contains have any different significance. The rights and freedoms which it guarantees, are indeed understood, indistinctly, from the provisions of the very fundamental law itself, including its preamble and the texts to which it cross-refers, as well as non-written principles emerging from Constitutional Council precedents.
Through its decision in 2001, the Constitutional Council considered that the law on abortion is compliant with the Constitution insofar as it preserves the equilibrium “that compliance with the Constitution involves between, on the one hand, safeguarding of human dignity against any form of degradation and, on the other hand, women’s freedom under article 2 of the Declaration on Human and Citizens’ Rights”. This constitutional precedent establishes a form of equilibrium between several constitutional freedoms, rights and principles: The 2001 decision was therefore taken by evaluating the law on abortion with regard to the principle of safeguarding human dignity, the right to life or even with regard to the freedom of conscience of health workers.
Registration of abortion in the Constitution without registering the other principles associated with it constitutes a fracture which makes the latter more vulnerable.
According to Guillaume Drago, Professor of public law at Paris II Panthéon-Assas university, apart from the freedom of conscience for health workers who may, in accordance with the 1975 law, refuse to undertake abortions and which is a constitutional freedom, the registration of abortion in the constitution contradicts certain constitutional principles such as “the personal freedom of health workers, the protection of health, mentioned in paragraphs 10 and 11 of the Preamble to the 1946 Constitution, incorporated in the constitutionality block, and the constitutional protection of the greater interests of children again mentioned by the 2019 Constitutional Council.”
For those seeking ever more, the bill as submitted does not go far enough: they dispute the choice of the word freedom and deplore that such constitutional freedom should appear in article 34, which defines what is within the competence of the legislator, rather than as in article 1 or 2 which refer to a fundamental right.
Irrespective of which wording is adopted, freedom or right, one can but be concerned for the consequences of registration in the Constitution on the legal framework which currently controls abortion. The symbolic impact is powerful and the threats to the right to life, the freedom of conscience and the freedom of speech are far from insignificant. In future, the way in which the Constitutional Council could weigh up these different principles in its precedents remains uncertain.