CONSTITUTION. Emmanuel Macron has announced a bill to allow the right to abortion to be enshrined in the Constitution. However, a few subtleties could complicate the inscription of abortion in stone.
A new step towards the inclusion of voluntary termination of pregnancy (IVG) in the Constitution. Several clues had been slipped and on March 8, 2023, Emmanuel Macron announced a bill to constitutionalize women’s recourse to abortion, “in the coming months”. The news, made during the national tribute to the activist Gisèle Halimi who had made the right to abortion one of her main fights, was welcomed by feminist associations. “This is a big step towards securing the right to abortion in France and an exemplary step forward for the rest of the world”, reacted Sylvie Pierre-Brossolette according to comments reported by Le Monde. Claudine Monteil, historian and close friend of Simone de Beauvoir and Gisèle Halimi greeted a “historic day” with Franceinfo: “This project for the Constitution with the agreement of the President of the Republic goes beyond our own dreams”, he said. she launched on behalf of her activist friends.
This is without counting on the other side of the coin which has upset these same feminist authorities. Emmanuel Macron had two options to defend the entry of the right to abortion into the Constitution and he chose the more difficult path: the bill will be included in an overall constitutional revision rather than by a specific text. Consensus will in fact be more difficult to find between parliamentarians depending on the measures that will accompany the inclusion of abortion in the Constitution. While this is a significant step forward after the National Assembly and Senate votes, there is still a long way to go before we see this right set in stone.
Already voted by Parliament – on November 24, 2022 by the National Assembly and on February 1, 2023 by the Senate -, the inclusion of abortion in the Constitution is preparing for a new parliamentary course. The parliamentarians’ proposal will become a constitutional revision bill carried by the government and submitted to the vote of Parliament, or rather one measure among a set of proposals. “In the coming months”, according to the timeframe given by the Head of State, a bill will be submitted to both chambers and will have to be voted on by a three-fifths majority to be adopted.
This new voting sequence should not pose a problem for the inclusion of abortion in the Constitution, but the presence of other measures in the constitutional revision bill, some of which would not achieve consensus – such as the reduction in the number of parliamentarians or the return to the seven-year term – would put the constitutionalization of abortion in jeopardy. This is the fear of several political defenders of women’s rights such as the president of the LFI group in the Assembly, Matilde Panot: “A step forward that we owe to the mobilization of feminist associations who have been calling for it for years. Macron wishes do so in a comprehensive constitutional review. We are asking him for a specific bill on the subject for it to succeed!” And others like the rebellious deputy Damien Maudet to bid: “To include [this measure] in a global revision would only be a shameful manipulation: it would focus the debate on this subject in order to make us forget everything else”, reports the Huffpost. The Elysée defends itself from these accusations and assured the same media that “the overall constitutional bill [will be] drawn up in a search for consensus like that already existing on the question of abortion. “
“The progress resulting from the parliamentary debates will allow, I hope, to include in our fundamental text [the] freedom [to resort to abortion, editor’s note] within the framework of the bill amending our Constitution”. With this statement made on March 8, 2023, Emmanuel Macron showed his preference for speaking of “freedom” rather than “right to abortion”. The Head of State therefore stands behind the Senate, which only adopted the inclusion of abortion in the Constitution after the substantial modification of the text induced by the amendment of Senator LR Philippe Bas, a former collaborator of Simone Veil.
While the deputies voted to add article 66-2 to the Constitution providing that “the law guarantees the effectiveness and equal access to the right to voluntary termination of pregnancy”, the senators preferred the inscription of this mention in article 34 of the fundamental text: “The law determines the conditions under which the freedom of the woman to put an end to her pregnancy is exercised”. A formulation which makes the law more acceptable according to Philippe Bas who explained: “There is no absolute right, there is a freedom already recognized and which we can write in the Constitution, but on the condition that there is a reconciliation between the rights of the pregnant woman to terminate her pregnancy and the protection of the unborn child after a certain period”.
Left-wing groups continue to defend the inclusion as such of the “right to abortion” in the Constitution, “an essential condition for securing this fundamental right for years to come”, according to the association Abortion in Europe, women decide with the world. But, the senators find several advantages in the term of freedom, in particular the fact that it leaves the field open to a modification of the Veil law, as was the case for the extension of the deadline for resorting to abortion in April 2020 or for its coverage by the Health Insurance voted a few years ago. Purposefully chosen examples.
Despite these arguments, politicians regret the replacement of the expression “right to abortion” by freedom, but PS Senator Laurence Rossignol explained in Le Parisien that she prefers to retain that “as soon as the Constitution guarantees that abortion is a freedom , it is protected. Voices are raised with more severity on the Bas amendment, such as that of Senator Mélanie Vogel who judges that the text “is not satisfactory, because nothing will one day prevent the legislator from regressing on the right to ‘abortion’. If on the form, the left finds fault, in substance, Philippe Bas’s amendment remains a solution to constitutionalize the right to abortion, a situation that Mélanie Vogel summarizes in a question, recalls the evening newspaper: ” Is it better to have an unsatisfactory step, but a step nonetheless, or no step at all?”
After the Senate’s vote on the adoption of the inclusion of the right to abortion in the Constitution, the organization of a referendum to decide on this question seemed inevitable. All bills that lead to a modification of the fundamental text must be voted on in identical terms by both chambers of Parliament and then definitively adopted by the majority of French people in a referendum, according to article 89 of the Constitution. But the passage by popular vote can be circumvented on one condition: that the constitutional revision bill be of governmental origin, that is to say proposed by the President of the Republic. This is precisely the case for the constitutionalization of abortion.
The last word on the entry of abortion into the Constitution will not go to the French, but to Parliament meeting in Congress. The vote will therefore be taken by all the parliamentarians by a three-fifths majority. And the process reassures certain politicians. Sylvie Pierre-Brossolette seems to consider in the columns of Le Monde the use of a referendum on the question of abortion as a risky maneuver that could cut short the hopes of defenders of women’s rights. According to her, it does not matter whether the measure is proposed alone or in an overall revision project, “the main thing is that it is assumed by the government and that it can be adopted by parliament, without going through a referendum”.
