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"The inclusion of abortion in the Constitution threatens the freedom of conscience of medical personnel"

2023-01-31T11:24:03.192Z


FIGAROVOX / TRIBUNE - In a collective text written by Grégor Puppinck, several jurists including Guillaume Drago warn of the consequences of the possible introduction of the right to abortion in the Constitution. According to them, this decision would violate the conscience clause and...


On February 1, the Senate will vote on the proposal to introduce the "right to abortion" into the Constitution by adding a new article 66-2 as follows:

"The law guarantees the effectiveness and equal access to the right to voluntary termination of pregnancy

.

If this proposal, in itself, will not modify the conditions of access to voluntary termination of pregnancy, it does however have the direct effect of threatening the freedom of conscience of medical personnel and restricting freedom of expression.

Senators need to be warned of this very real threat.

Twice already, in 2018 and 2020, environmentalist and socialist deputies and senators have undertaken to remove the conscience clause for abortion.

According to the explanatory memorandum to the 2020 bill, it was for them, by eliminating it "

to alleviate the stigmatization

[of women]

and the difficulties of access to abortion caused by this [ …] conscience clause

”.

These attempts have come up against the opposition of the unions of gynecologists and obstetricians, as well as that of the National Consultative Ethics Committee (CCNE), which considered, in its opinion of December 8, 2020, that

"the specific conscience clause underlines the singularity of the medical act represented by abortion”

and should be maintained, both for ethical and practical reasons.

These two attempts were thus rejected by the legislator.

This time, it is in an indirect and much more discreet way, but just as dangerous, that the proposed constitutional revision threatens freedom of conscience.

Indeed, by committing the State to guarantee the “effectiveness” of access to abortion, it obliges the legislator and the administration to remove the obstacles hindering abortion.

However, conscientious objection is presented by the promoters of abortion as the main obstacle in France.

If the right to effective access to abortion is enshrined in the Constitution, the Constitutional Council may have to weigh it against freedom of conscience.

Collective platform

Once recognized the constitutional right to effective access to abortion, what would become of the conscience clause which has only legal value?

It would become possible to justify its abolition in the name of the constitutional objective of effective access to abortion.

This could be achieved by Parliament, by repealing the clause, or by a priority question of constitutionality addressed to the Constitutional Council on the occasion of a case brought against an objecting doctor.

Admittedly, the guarantee of the conscience clause was an essential condition for the decriminalization of abortion, and the Constitutional Council recognized the constitutional value of "

the freedom of persons called upon to resort to or participate in an abortion

", in its decision of January 1975. But if the right to effective access to abortion is enshrined in the Constitution, the Constitutional Council may have to weigh it against freedom of conscience.

He could then consider that this is sufficiently guaranteed by the deontological right granted to all doctors, midwives and nurses

"to refuse treatment for professional or personal reasons", "except in cases of emergency and those in which there is no to his duties of humanity

"

,

or by the ability to change profession or specialty.

In fact, no doctor, midwife or nurse would be materially obliged to practice or prescribe an abortion, but,

ultimately

, his objection would be at the cost of his resignation, or the choice of another profession.

The regime of these health professionals would be lowered and aligned with that of pharmacists who, although delivering pills for medical abortions, do not have a conscience clause.

The deletion of the clause would make it possible to condition access to all or part of the medical professions on the acceptance of performing surgical or medical abortion, and would justify the dismissal of objectors, as is already the case for pharmacists.

French justice has already validated the dismissal of objecting pharmacists (Court of Appeal of Paris, September 18, 2018).

As for the European Court of Human Rights, it ruled that discrimination in hiring a midwife because of her refusal to perform abortion does not violate her freedom of conscience, during the '

Objectors should therefore justify themselves on a case-by-case basis and expose themselves to disciplinary and legal proceedings.

Collective platform

Concerning the ethical right of doctors, midwives and nurses to refuse care, it would probably not be more effective than that of pharmacists to "

refuse to dispense a drug

", guaranteed in article R. 4235-61 of the code of public health.

More generally, if the legal conscience clause is removed, we do not see why the ethical clause would be respected.

This ethical right is less a right than an exception to an obligation of care, because it is only possible in the presence

of "an essential personal or professional requirement that determines the quality, safety or effectiveness care

” (article L.1110-3 of the public health code).

Failing this, the practitioner may be condemned for “

discrimination in access to prevention or care

”.

Objectors should therefore justify themselves on a case-by-case basis and expose themselves to disciplinary and legal proceedings, the terms of which have already been facilitated by the law of January 26, 2016. Suffice to say that objecting practitioners would be at high risk of being harassed .

It is therefore not a fictitious danger.

Today, in law, abortion remains an exception and respect for life the principle.

This appears clearly in the statement of article 16 of the Civil Code, according to which "

The law ensures the primacy of the person, prohibits any attack on the dignity of this person and guarantees respect for the human being from the beginning of his life.

The reminder of this principle introduces the book of the Public Health Code devoted to abortion (articles L. 2211-1 to L. 2223-2).

If abortion is established as a constitutional right, then all of the law relating to abortion and prenatal life will have to be reorganized around this principle.

From an exception, abortion would become a principle, while the principle of freedom of conscience, conversely, would become, at best, an exception.

The CCNE does not seem to be saying anything else when it writes in 2020: “

it may be difficult to remove it [the specific conscience clause] as long as a right to abortion is not recognized.

»

This reorganization around the constitutional right to abortion would affect other essential legislative provisions, in particular article 16 of the Civil Code which would contradict the Constitution.

It would also affect other freedoms, in particular freedom of expression.

Already in 2014, the legislator extended the offense of obstructing abortion, in order to fight against websites and pro-life activists accused of exerting pressure on pregnant women in distress.

Since then, people who try

to "prevent the practice

" of an abortion, in particular "

by exerting moral and psychological pressure

" are liable to two years' imprisonment and a fine of 30,000 euros (art. L. 2223-2 of the public health code).

Enshrining abortion in the Constitution makes it a value, a "dogma" that places it above doubt and democratic discussion.

Collective platform

The proposed constitutional amendment would further restrict freedom of expression, because “consecrate” abortion in the Constitution makes it a value, a “dogma” that places it above doubt and democratic discussion.

To criticize abortion would then amount to opposing a value of the Republic.

Freedom of expression and political debate would be considerably reduced.

However, abortion should not remain a taboo subject.

The paradox of this parliamentary initiative is that access to abortion is not, and has never been threatened in France since the Veil law.

Of course, there are said to be a growing number of conscientious objectors.

But the scarcity of gynecologists and obstetricians agreeing to perform abortion has been largely offset by the spread of medical abortion, which represents 70% of abortions in 2019 (according to DRESS), and which can be prescribed by any doctor or sage -liberal woman, even in telemedicine, and by the authorization granted to midwives to carry out surgical abortions.

Moreover, the increase in the price of abortion since 2022 has made this practice financially attractive.

Thus, no woman in France is prevented from having an abortion, and access to abortion is in no way threatened.

Read alsoGuillaume Drago: “Why it is not appropriate to include a right to abortion in the Constitution”

As for the threat of an abolition of abortion by a hypothetical parliamentary majority hostile to abortion, it has already been neutralized by the decision of the Constitutional Council of June 27, 2001, which makes abortion stem from the constitutional principle of individual freedom. .

Therefore, it appears that the objective of this constitutional revision project is not defensive, but offensive.

Its goal is not so much to protect abortion as to emancipate it from its status as an exception to respect for life to make it a right in itself, an organizing principle.

This would not only have enormous symbolic power, but also devastating consequences for the rights and freedoms based on the previous principle of respect for human life, in particular on the freedoms of conscience and expression.

Even Simone Veil would turn over in her grave, she who declared before the Assembly:

"I say this with all my conviction: abortion must remain the exception, the last resort for situations without exit", specifying, in connection with of its law,

"

that if it no longer prohibits, it does not create any right to abortion

"

.

As for the conscience clause, she assured that "

it goes without saying that no doctor or medical assistant will ever be required to participate".

Signatories:

Grégor Puppinck, doctor of law and Director of the European Center for Law and Justice (ECLJ), initiator of the forum

Pierre Delvolved, member of the Institute.

Guillaume Drago, associate professor of law faculties, president of the Family & Republic Institute

Clotilde Brunetti, Emeritus Professor of Law

Stéphane Caporal-Greco, professor of public law

Joel Hautebert, university professor

Jean Christophe Galloux, associate professor of law faculties

Jean-Pierre Gridel, associate professor of law faculties

Jean-Michel Lemoyne de Forges, associate professor of law faculties

Béatrice Libori, lecturer in public law

Gérard Mémeteau, Emeritus Professor of Law

Marie-Thérèse Avon-Soletti, Honorary Lecturer

Tanguy Barthouil, lawyer at the Avignon Bar

Nicolas Bauer, PhD student in law, researcher at ECLJ

Françoise Besson, lawyer at the Court

Christophe Bourdel, lawyer at the Paris Bar

Cyrille Callies, jurist

Cécile Derains, lawyer at the Court

Jean Dupont-Cariot, notary

Claire de La Hougue, doctor of law

Benoît de Lapasse, lawyer at the Paris Bar

Loïc Lerate, lawyer at the Paris Bar.

Bertrand Lionel-Marie, lawyer at the Paris Bar

Delphine Loiseau, lawyer at the Paris Bar

Philippe Marion, lawyer at the Paris Bar.

Claude de Martel, President of JPE

Santiago Muzio de Place, lawyer at the bar of Lyon

Jean Paillot, lawyer at the Strasbourg bar

Vincent Puech, lawyer at the bar of Avignon

Yohann Rimokh, lawyer at the Brussels Bar

Olivia Sarton, lawyer

Benoît Sevillia, lawyer at the Paris Bar

Geoffroy de Vries, lawyer at the Paris Bar

Source: lefigaro

All news articles on 2023-01-31

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