“Freedom” rather than “right”.
The Senate, majority on the right, voted by 166 votes against 152 in favor of an inscription of the
“freedom of women”
to resort to abortion in the Constitution.
“The law determines the conditions under which the freedom of the woman to terminate her pregnancy is exercised”:
this is the formula which would therefore complete Article 34.
It was on the initiative of Senator LR Philippe Bas that this counter-proposal was voted in the upper house of Parliament.
If the left deplores the absence of the word "
right
", it nevertheless wanted to allow the parliamentary shuttle to continue at all costs.
Can we see a tour de force of the right?
It's hard to say when the Socialist Group immediately welcomed a
“major step forward for women's rights”.
Mathilde Panot, the leader of the Insoumis group in the Assembly, even hailed the victory on Twitter: “
Historic.
After the National Assembly, it is now the Senate that voted for the inclusion of abortion in the Constitution
”.
So,
Back to definitions
Back to definitions.
"
Freedom is the invocation of personal autonomy, such as the freedom to come and go, or collective autonomy, such as freedom of the press
", explains the professor of public law at the University Paris II Panthéon-Assas, Guillaume Drago.
“
The rights, for their part, are asserted with regard to the public authorities, like the right to education
”.
The State must intervene to implement and guarantee them for each individual.
Read alsoThe impossibility of including the right to abortion in the Constitution
"
Basically, it's the old distinction between rights-freedoms and rights-claims, between the
'
rights to
'
and the
'
rights to
,'" asserts the philosopher Pierre-Henri Tavoillot.
The first are those found mainly in the
Declaration of the Rights of Man and of the Citizen
of 1789: freedom of expression, opinion, assembly.
“
These limit the power of the state and allow the emergence of a private sphere,
” he explains.
“
Debt rights require the intervention of the State, which must ensure that they are guaranteed.
“, he adds.
These are found in the preamble to the 1946 Constitution: the right to education, the right to health, the right to work.
“A small defeat for the right”
Thus, the distinction between “right” and “freedom” is not negligible.
The inclusion of "women's freedom" in the Constitution will not confer "
absolute rights
", claimed Philippe Bas before the Senate.
His counter-proposal was also intended to
"guarantee the balance of the
Veil law
"
.
Indeed, where the notion of
"
right" would have frozen the conditions of application, the notion of "freedom" will allow legislators to retain the power to define the conditions and limits of this freedom.
This
"allows the legislator not to abdicate his rights in favor of the constituent power
", summarized Philippe Bas.
"
It's a way of putting a certain duty of wisdom in their hands
,” says Guillaume Drago.
Read alsoJean-Éric Schoettl: “The constitutionalization of the right to abortion is agitprop”
“
It is nevertheless a small defeat for the right
”, he quickly nuances.
Indeed, “
freedom as well as the right are
justiciable
”.
“
That is to say that it is possible to claim them before a judge
”.
Thus, who will decide, for example, on the primacy between “
the freedom of the woman to terminate her pregnancy” and the
“
freedom of conscience
” of certain caregivers?
There is the risk that this new freedom sometimes “
clashes
” with other rights or freedoms guaranteed by the Constitution, underlines the professor of law.
And it will be up to the judge, through his case law, to decide on a balance, and not to the legislator.
"Keep the Spirit of the Constitution"
Finally, "
we modify the text to make it acceptable
", explains Guillaume Drago who believes that the Constitution was not designed to accommodate social issues within it.
The substitution of terms responds to the need of some to “
preserve the spirit of the institutions
”, analyzes Pierre-Henri Tavoillot.
“
The great danger is to consider that the Constitution is only a simple text of law, which could always be enlarged
,” he adds.
However, it is necessary to be very “
prudent
” with the Constitution by taking care not to register there, explains the philosopher, measures which structure not the system but the social order as a whole.
"
This comes from a misunderstanding
,
"
says the philosopher, referring to the context in which emerged, in France, the desire to include abortion in the Constitution last June.
In the United States, “Roe v.
Wade”, which guaranteed the right to abortion, emanated from the Supreme Court and therefore belonged to the judges.
This right had not been the subject of a law passed by elected parliamentarians.
"
By overturning this judgment in June 2022, the American judges have, in a way, put this decision in the hands of politicians
", continues the philosopher.
However, in France, the right to abortion emanated from a "
popular decision
"
via
the parliamentary vote, which, somewhere,
Ultimately, the substitution of the term appears as a compromise.
The left obtains the registration of abortion in the Constitution, and the right tries, as best they can, not to give in to the reflex of systematic constitutionalization.
However, it remains to be seen in the future whether this balance will be preserved in practice, in particular in the case law that will emerge over time.
