Guillaume Drago is a professor of public law at the University Panthéon-Assas Paris II.
Should a "right to abortion" be included in the French Constitution?
Our answer is clearly negative and we would like to explain why.
It all starts with a decision of the Supreme Court of the United States of June 24, 2022, overturning its 1973 jurisprudence on abortion, a judgment which produced very strong reactions in the French political class, leading to several proposals for constitutional law. intended to enshrine a "right to abortion" in the Constitution.
Nobody wants today, in the political society of our country, to question the legislation on abortion.
Guillaume Drago
These proposals must be analyzed for what they are, whereas no one today, in the political society of our country, wishes to question the legislation on abortion.
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The law of January 17, 1975 on voluntary termination of pregnancy (IVG) states, in its first article, that “
the law guarantees respect for every human being from the beginning of life.
This principle can only be infringed in case of necessity and according to the conditions defined by this law
”.
This legislative principle was, during the debate in Parliament at the time, an essential element which had led to the acceptance of a "suspension" (this is the term used by art. 2 of the law) of the provisions of the Penal Code punishing the practice of abortion (former art. 317).
It was a question of balancing the rights of the mother and those of the embryo, by laying down a rule derogating from “
respect for all human beings from the beginning of life
”.
A proposed constitutional law on the “right to abortion” would override the Veil law of 1975 and render it pointless.
It is the whole of the legislative edifice relating to abortion that should be modified.
Guillaume Drago
We see how much the spirit of this legislation, essentially derogatory, has been diverted in favor of what some call a "right to abortion", which is not recognized by French law.
If a proposed constitutional law were passed, it would impose itself on this legislation, which would become in a way pointless.
It is the whole of the legislative edifice relating to abortion that should be modified.
However, it is clear that the inclusion of a "right to abortion" in the Constitution falls within the freedom of the constituent power, which is complete.
If the constituent so decided, this "right" could be included in our constitutional text, even if the proposed inclusion of this "right" in a new article 66-2 of the Constitution seems completely inappropriate, within a title VIII of the Constitution devoted to the judicial authority.
The logic of this connection escapes us.
One wonders about the social utility of such a subject, in the present circumstances.
Guillaume Drago
But above all, a proposal for a constitutional law, of parliamentary origin, must be voted on in the same terms by the National Assembly and by the Senate and then, as required by article 89 of the Constitution, necessarily submitted to the French people who is the sovereign constituent, through a referendum procedure.
We must measure the legal and political consequences: the French people will have to approve – or not – this proposal, risking creating a serious division within the French population.
One wonders about the social utility of such a subject, in the present circumstances.
It is therefore a major and serious act, from the legal point of view and, even more so, from the point of view of national cohesion.
Is the Constitution the right "vector" for this recognition?
This question needs to be asked.
It is not because a “right” or a “freedom” is enshrined in the Constitution that its protection is necessarily guaranteed.
Rather, it means that it will impose itself on everyone, and first and foremost on the legislator.
In this case, only the will of the sovereign people can decide it.
But this "constitutional rigidity" does not create consensus, neither political, nor legal, nor social.
The “constitutionalisation” of a “right to abortion” will lead to opposition to other constitutional rights such as the freedom of conscience of doctors.
Guillaume Drago
Let us insist on the fact that the "constitutionalization" of a "right to abortion" will lead to opposition to other constitutional rights: the freedom of conscience of doctors, recognized as a constitutional freedom by the Constitutional Council in 1977 ( Dec. No. 77-87 DC, November 23, 1977), personal freedom or the protection of public health.
There is, neither in French legislation, nor at the level of the law of the Council of Europe (ECHR), a "right to abortion".
The European Court of Human Rights (ECHR) does not recognize, in any situation, a “right to abortion”.
On the contrary, it states that “
the right to respect for private life cannot […] be interpreted as enshrining a right to abortion
” (ECHR, 16 December 2010,
A., B. and C. v. Ireland
and October 30, 2012,
P. v. Poland
).
And the international commitments which seek to prevent recourse to abortion for reasons of public health (health of the mother, of the child, birth rate) clearly illustrate that it is not a "right", otherwise why limit it? and prevent its use?
Let us add that the ECHR admits that States can “
legitimately choose to consider the unborn child as a person and protect his life
”.
On these societal rights, the Strasbourg Court refers to the “
national margin of appreciation
” of the States, ie recognizes that this question falls within the competence of the States and not of the Council of Europe.
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One of the arguments insisting on the need for the inclusion of this "right to abortion" in the Constitution is based on the difficulties of access to abortion.
It would thus be necessary to “
guarantee effective access to abortion
”, as several constitutional bills point out.
However, this access is not only organized by law (the Public Health Code) but guaranteed by the Constitutional Council which considers that access to abortion services is a guarantee of public service and respects the principle of equality. by organizing these services throughout the territory.
The Constitutional Council clearly states: “
These provisions [of the law] also contribute to respect for the constitutional principle of equality of users before the law and before the public service
” (C. const., n° 2001-446 DC, June 27, 2001,
Law on abortion and contraception
, § 15).
There is therefore no restriction on access to abortion, which refers to a public health policy under the responsibility of the Government.
The Constitution is the legal expression of the stability of society.
We must respect it and not include in it everything that makes up our fundamental rights and freedoms.
Our institutions, like our Law, need legal stability and "
clear and indisputable principles which always lead to the maintenance of the Constitution and the happiness of all
", as stated in the Declaration of the Rights of Man and of the Citizen of 1789. This This is certainly not the case with these constitutional bills.