Everything is played in the subtlety of the chosen words.
This Wednesday, March 8, Emmanuel Macron announced that he wanted to "engrave the freedom to resort to voluntary termination of pregnancy (IVG)" in the Constitution.
"Freedom"... The formula is far from trivial since it abandons the notion of "right", demanded by part of the opposition.
It confirms, on the other hand, the adhesion to the proposal of the Senate, which had pronounced on February 1st by 166 votes against 152 in favor of the inscription in the Constitution of the "freedom of women" to resort to IVG.
What make some feminists say, although happy, that the victory is half-hearted.
Is she?
Abandoning the word "right" in favor of "freedom", what does this change in practice?
Everything, according to the constitutionalist Bertrand Mathieu.
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Colliding rights
To see more clearly in this legal jargon, we must go back to basics.
As explained in
Figaro
the professor of public law at the University of Paris II Panthéon-Assas, Guillaume Drago, "freedom is the invocation of personal autonomy, such as the freedom to come and go, or collective autonomy, like freedom of the press.
The right, meanwhile, “asserts itself against the public authorities, like the right to education”.
The State must then intervene to implement and guarantee it for each individual.
In the case of abortion, for fear that the situation will one day degenerate in France (as is the case in the United States), certain parliamentarians (in particular the ecologist Mélanie Vogel and the rebellious Mathilde Panot) preferred to take take the lead in asking for the inclusion of the "right" to abortion in the 1958 Constitution.
Why do they hold on to this word "right"?
Because, according to them, the term “freedom” is not enough, and that “registering the right to abortion in the Constitution would strengthen the rights of women”, assures Bertrand Mathieu.
And for good reason: “We would end up with a right of claim, that is to say that the State would be obliged to make every effort to ensure this right.
This is the principle that we find with the right to education, the right to health, the right to work”, adds the constitutionalist.
And this is precisely what the parliamentarians mentioned above and the feminist associations are campaigning for: that everything be put in place to allow women to have an abortion in good conditions, to provide access to care...
Except it's not that simple.
On the one hand, recalls Bertrand Mathieu, "the law as it is already laid down by the Constitutional Council says that a woman cannot be forced to continue a pregnancy that she considers herself unable to continue. .
This is called personal freedom.
And this by virtue of Article 4 of the Declaration of the Rights of Man and of the Citizen, which states that "freedom consists in being able to do anything that does not harm others" (freedom of action), and Article 2 which refers to the personal freedom of each individual.
On the other hand, "there exists freedom of conscience, to which the doctor responds, and which responds to the same logic
(if he does not want to perform a medical act contrary to his own personal, professional or ethical convictions, he is not obliged to do so, in the name of the freedom described in article 2, Editor's note).
At the same time, there is also the protection of the embryo.
“Concretely, the Constitutional Council says that the protection of the embryo stems from the principle of human dignity.
"If we want to simply imagine, there is on one side of the balance the freedom of the woman (and therefore to have recourse to abortion) and on the other the protection of the embryo, warns the constitutionalist.
And the further a pregnancy progresses, the more freedom is reduced in favor of the protection of the embryo.
It's a balance in perpetual evolution.
Moreover, the duration during which a woman can resort to abortion has evolved.
Including abortion as a "right" in the Constitution would certainly strengthen women's rights but would weaken other rights and freedoms
Bertrand Mathieu, constitutionalist
And therefore, registering abortion as a “right” in the Constitution would come up against other rights and freedoms, in this case, the freedom of conscience of doctors and health professionals;
but also the protection of the embryo.
Still in Le
Figaro
, Guillaume Drago takes an example: if abortion were a right, “a seven-month pregnant woman could challenge a refusal of abortion by invoking constitutional law, and then a QPC (priority question of constitutionality,
NDR
L ) would be filed to challenge the law setting the time limit for recourse to abortion, he imagines.
However, constitutional law is the highest in the hierarchy of norms, underlines the specialist.
There is an intrinsic danger in enshrining an absolute right without elements of balance.
Amending the Constitution, is it possible?
It is possible to modify the Constitution of 1958, according to its article 89 which provides that “the draft revision must be examined then voted by the two assemblies in identical terms”.
Thus, for the right to abortion to become one of the fundamental constitutional rights, the National Assembly and the Senate would have to agree on a single text.
This could then then be submitted to a referendum or a government bill, which would avoid going to the polls.
A symbol but no major change
Why, in this case, not register abortion as a "right" while framing it and informing the legal deadlines for abortion, which exist today in the law?
“Simply because it is precisely that of the law, not of the Constitution”, slice Bertrand Mathieu.
If the "right" to abortion in the Constitution would turn things upside down and would pose many legal problems, registering it as "freedom", on the other hand, does not change anything a priori.
It is only a strong symbol.
"Emmanuel Macron knows it well, it's a political coup", sums up Bertrand Mathieu.
“A communication operation which aims to inscribe something very consensual in the Constitution because no one questions the very principle of freedom and as we go further, we cannot say that the rights of women come out strengthened, nor weakened.”
The following ?
And now ?
The President of the Republic has assured him: he will bring this constitutional bill “in the coming months”.
Rather than a referendum (a politically delicate procedure, because it would risk creating a debate on a subject on which there is consensus to this day), it should submit the text to Congress, that is, the meeting of the Assembly and the Senate, where it will have to obtain a three-fifths majority to have the text adopted.
We have since learned that this constitutional amendment on abortion could be slipped into a so-called “overall” constitutional revision.
It is in any case the plan of the head of state, if we are to believe
Le Monde
.
What to give rise to some fears, as with Laurence Rossignol.
“Emmanuel Macron must propose a constitutional bill exclusively dedicated to abortion.
To include it among several measures of a different nature and impact is to take the risk of not obtaining the majority of three-fifths, raises the senator PS of the Oise, reached by telephone.
For example, I can very well be in agreement with the inclusion of abortion in the Constitution but not with anything else.
And it is for this reason that this constitutional amendment must be specific, otherwise the project risks being obscured.
