Abortion in the French Constitution : Doubts of the French Senate Laws Commission


Abortion in the French Constitution: Doubts of the French Senate Laws Commission

On Wednesday 14th February 2024, the French Senate Laws Commission examined the constitutional bill to register abortion in the French Constitution. Although the commission “acknowledged” the text submitted by the Government, it expressed several reservations on the wording in an official communiqué. The examination during a public session on 28th February will enable the Senators to modify the text through amendments, which could lead to deferring the meeting of the Congress, scheduled for 5th March.

On 30th January 2024, the French National Assembly adopted by solemn vote the constitutional bill intended to register the following sentence under article 34 of the Constitution: “The law determines the conditions under which the freedom is guaranteed to women to be able to resort to an intentional pregnancy termination. “This wording partly picks up on a bill adopted by the Senate on 1st February 2023 according to which: “The law determines the conditions under which the freedom of women to terminate their pregnancy is exercised.

Is “Guaranteed freedom”, an enforceable right?

By adding the word “guaranteed”, the government intended to provide a pledge to the National Assembly who wanted to register a “right” in the Constitution rather than a “freedom” (see our article Abortion in the French Constitution: The wrong debate)

Nevertheless, during the hearing by the French Justice Minister Eric Dupond-Moretti, and subsequently in their official communiqué, the Senators expressed their doubt on several occasions on the inclusion of the term “guaranteed“. “It introduces a new concept which is found nowhere else in the Constitution […], namely that of guaranteed freedom” declared Senator Agnès Canayer, the reporter for the bill (associated with the Les Républicains party). Senator Philippe Bas, who produced the wording of the bill adopted by the Senate in February 2023, considered: “I wonder whether there are some rights and freedoms in the Constitution which are guaranteed and others which are not.”

Indeed, the guaranteeing of rights and freedoms is an inherent element of a Constitution.

Furthermore, the Senators were concerned about the legal consequences of the introduction of a new concept: “You assure us that it cannot have any major effect regarding the acceptance of responsibility. On that subject, jurists are still quite divided.” according to Agnès Canayer

Despite the assurances by the Justice Minister who claimed that the term “guaranteed” does not “in any way create an enforceable absolute unlimited right”, Philippe Bas added:

“If the term has no legal impact, it must not be added. If it does have an impact however, and if it tends to recognise a new power for judges to provide compensation to a person who could not have an abortion because the means are not provided by the government and the parliament, it becomes an enforceable right. This would mean moving power from Parliament to the judges and I would not be in favour.”

Concerns for the freedom of conscience

The second worry for Senators concerns the freedom of conscience for health workers. The January 1975 abortion law was careful to protect the freedom of conscience by introducing a specific conscience clause, which appears at article L2212-8 of the public health code.

As recorded in the communiqué by the commission, “Currently neither the freedom of women to resort to abortion, nor the freedom of conscience of health workers are consecrated as such in the Constitution. It therefore seems questionable to register in the Constitution only one of these two freedoms.”

Indeed, in view of the registration of a constitutional freedom, there is a concern that the specific conscience clause, which appears merely in law, could be perceived at a later date as an obstacle to abortion and therefore deleted by the legislator, as was intended by the initial bill for the extension of the abortion time limit. The freedom of conscience for health workers therefore needs an equivalent legal protection to that provided for abortion.

Possible amendments during the public session

During the examination, at the public session on 28th February, the Senators will be able to present amendments to modify the text. Such amendments could therefore delete the word “guaranteed” or add the freedom of conscience for health workers in the Constitution. In the event of modification of the text, the text would return to the National Assembly until both assemblies can agree on an identical text. That would therefore defer the Parliament Congressional meeting for the final adoption of the constitutional bill, which was initially scheduled for 5th March.

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