The Constitutionalisation of Abortion (Interruption Volontaire de Grossesse) in France

Anna Nocquet-Wass

Paris 1 Panthéon Sorbonne

On 8th March 2023 (International Women’s Day), the French President Emmanuel Macron vowed to have le droit à l’interruption volontaire de grossesse (right to abortion) enshrined in the Constitution. After the proposal of a new constitutional law, it was debated in both chambers of Parliament and finally adopted on 4th March 2024 by Parliament in its congressional form. The law amended article 34 of the Constitution which now enshrines women’s freedom to have a voluntary interruption of pregnancy. The constitutionalisation of abortion is a victory for women and human rights, yet challenges still remain as this right is still not effectively accessible for all women in France.

Background

To understand the process of constitutionalisation and the effects of such a principle, a rapid overview of the existing legislation before March 2024 is necessary. The 1975 law (Loi Veil) legalized abortion. It was voted as an experimental law for 5 years - after the experimental period, the Parliament or Government has to assess the effects of the measures tested to consider whether it would be appropriate to extend the scheme - and repealed the 1920 law.

In 1975, a list of conditions was put in place: the procedure had to be performed by a doctor, abortion could only be performed in the first 10 weeks of pregnancy and the woman requesting it had to be in distress and observe a reflection period. Different pieces of legislation have since then broadened this right, the latest being the 2024 constitutional amendment. Some major changes were the abolishment of the notion of distress, the extension from 10 weeks to 14 weeks of pregnancy, the possibility for midwives to perform abortions in medical facilities, as well as the suppression of the reflection period which was mandatory between the first and second appointment.

The 2024 amendment anchors itself in the evolution of such a right and is crafted in ways that show the impact of abortion laws in other systems and the crises encountered by them. The French government decided to draft a projet de loi constitutionnelle (a law proposed to Parliament by a member of the government) to enshrine this right in the Constitution. Some thought it was only done as a response to the overturning of Roe v Wade by the US Supreme Court. That is to say, the decision of the government to push for a constitutional amendment was read as a move to make a political statement vis-a-vis the increasing restrictions on reproductive rights in the United States. Critics considered that by choosing to amend the constitution, the French government symbolically imported a problem that existed in the US but not in France. It was argued that France should have focused on making abortion available in practice by implementing regulations to make sure every woman could have access to it, without discrimination based on where she lived, social class, work, age, and other factors instead of focusing on a problem in the US. This is a valid argument because, as a policy matter, making abortion accessible in the entire territory and taking legislative measures to protect and advance women’s rights is important.

It is perhaps true that the constitutionalisation of the right to abortion in France was in response to a crisis in the US, but that should not discredit its value and impact. Arguing that it being a response to a foreign problem makes the amendment to article 34 useless or dangerous is to misunderstand how legal systems interact with one another. In the same way as legal transplants, deciding to change domestic legislation because of what is happening in other countries can be dangerous, but it can also, if done in the right way, be a useful protection. It should be kept in mind that the 2024 amendment was passed considering the French system, political customs, and people, and amounted to more protective and accessible sexual and reproductive health rights. It is a symbolic constitutionalisation, but it also has the potential to making this right more accessible in the future.

The 2024 constitutional amendment

The constitutionalisation of abortion was a two-fold journey which started with a proposition de loi constitutionnelle (a law proposed to Parliament by a member of Parliament) following the procedure of article 89 of the Constitution. The proposal was to incorporate an additional article 66-2 to the Constitution, which would have implemented a right to abortion. This text did not go through as the Senate did not pass it in the exact same terms as the National Assembly had. Therefore, the government decided to draft a projet de loi constitutionnelle that made the constitutionalisation possible. The text voted in both assemblies adds a paragraph to article 34 of the Constitution. This article revolves around the domaine de la loi (domain of the law) and amounts to a division of competences between the legislative and the executive powers. It consists of a list of the areas which are reserved exclusively to the legislative power. Anything outside the scope of this article is therefore of the competence of the executive.

The 18th paragraph of this article now reads:

“The law shall determine the conditions under which the freedom guaranteed to a woman to have recourse to a voluntary interruption of pregnancy shall be exercised.”

Once the text was voted in both Assemblies in the same terms and the opinion of the Conseil d’Etat had been received, the President decided to use article 89 paragraph 3 of the Constitution. This paragraph enables the President to decide to not have the text enacted through a referendum but through Parliament in its congressional form. It then adopted the text on the 4th of March.

This constitutional reform does not amount to the freedom or right to abortion: it consists in the freedom of women to have recourse to abortion within the limits determined by the legislative power. There have been controversies around the choice of amending article 34. It was thought that the right to abortion should have been set out in a standalone article and not simply enabled through conferring competence upon the legislative body. While constitutionalisation is an effective mechanism for the protection of rights, article 34 presents risks. The legislative power has the competence to determine the conditions in which the right to abortion can be exercised. Therefore, Parliament could decide to create new conditions that de facto render the procedure inaccessible (e.g., a reduced number of weeks to do the procedure, the designation of only a few professionals who can do the procedure, reinstating the distress clause, reinstating the reflection period, etc). Consequently, if the majority in Parliament changes, it can in effect render access to abortion almost impossible just by changing the law. The only thing that Parliament cannot do -  because that is what is protected through the 2024 amendment - is to completely abolish the right. In other towards, even though the constitutionalisation anchors this right in the constitutional sphere, it can still be restricted through ordinary legislation.

Consequences and challenges

Even after the constitutional amendment, pressing challenges regarding access to abortion remain. Two of the major ones are geographical inequality and the double clause de conscience (double conscientious objection clause) which adds a specific clause on top of the general conscientious objection clause. In terms of conscientious objections, the French health code states that except in emergencies all medical professionals have the right to not treat a patient for personal or professional reasons as long as they redirect them to another medical professional. The general conscientious objection clause applies to all procedures, including abortions. However, another conscientious objection clause exists specifically for the latter. Like with the general one, all the obligations to conscientious objections to abortion apply (e.g., redirection to a medical professional). In practice, a conscientious objection clause specifically for abortion is an obstacle to the effective access to abortion. This redundant clause is seen as a message sent to women who decide to have the procedure as it does not serve any other purpose than to creating an unjustified distinction between abortion procedures and any other medical procedure. Many other deterrent measures still exist, and we will have to wait and see if the constitutionalisation makes changes possible.

In light of the above, the question is: what are the real legal implications of the amendment to article 34 of the French Constitution? In addition to the high symbolic value it accords, the amendment makes it impossible to criminalize abortion (or the act of performing an abortion). The protection afforded by the new amendment of article 34 is similar to the one abolishing the death penalty. The State cannot undo what has been done to further the rights of its people through the constitutional amendment, which is referred to as an effet cliquet juridique (legal ratchet effect). This theory, derived from the field of economics, is used in human rights law to signify a form of entrenchment that is impossible to undo once a certain mark has been passed.

Furthermore, the phrase “freedom guaranteed to” adopted by the new text of article 34 is a new constitutional category. The Conseil constitutionnel will likely have to interpret this wording and determine its scope and limits. It will also have to determine if it can be used to formulate questions prioritaires de constitutionnalité (priority questions of constitutionality), i.e. to question the constitutionality of laws which are in effect by way of a posteriori review. New developments are therefore to come.

The constitutionalisation of abortion is a symbolic victory for women’s rights in France but also around the world. The protection it brings to this right can be considered insufficient in some ways, but it should be celebrated as furthering human rights and encouraging politicians to facilitate the access to this fundamental right for all women.

Anna Nocquet-Wass is a Master’s student in Constitutional Law and Fundamental Rights at Paris 1 Panthéon Sorbonne

Anna Nocquet-Wass, ‘The constitutionalisation of abortion (interruption volontaire de grossesse) in France’ IACL-AIDC Blog (16 April 2024) The Constitutionalisation of Abortion (Interruption Volontaire de Grossesse) in France — IACL-IADC Blog (blog-iacl-aidc.org)