Enshrining Abortion Rights in the French Constitution

On International Women’s Day 2024, President Emmanuel Macron signed an amendment, that enshrines abortion rights in the French Constitution. Marking a historic moment, it is the first time during the 5th Republic that the sealing ceremony was conducted publicly, accompanied by a speech from the President. This echoed a similar public address he gave on the same day last year, wherein he pledged that the French Government would actively pursue this reform – a commitment he renewed when he honored Gisèle Halimi, a lawyer and abortion activist.

Abortion is now a constitutionally “guaranteed freedom” for women in France: but constitutionally guaranteeing this freedom is also — if not even more — a call-out to the rest of the world. By constitutionalizing the right to abortion, French parliamentarians and government officials aimed to signal this commitment to the global community, with a particular emphasis on the United States. The joint session of the Congress at the Château of Versailles concluded the amendment process initiated following the US Supreme Court’s removal of the constitutional right to abortion in June 2022.

It is quite rare, in French history and the history of modern democracies, that an amendment explicitly cites rulings of a foreign court as justification for revising the national Constitution. The decision stemmed from the reversal of Roe v. Wade by Dobbs, prompting the French Government to convey a “universal message of solidarity to all women.”

The amendment was initially proposed by National Assembly members of the opposition in 2022 and had passed in both houses (in significantly different versions) before the President decided to take over the constitutional process to avoid a referendum on the topic. The first version included references to the US Supreme Court’s decisions in the very first sentence of the explanatory statement, following the well-known quote by Simone De Beauvoir: “Never forget that it will be enough for a political, economic, or religious crisis for the rights of women to be called into question. These rights are never acquired. You will have to remain vigilant throughout your life.”

Critics and compromises

The lengthy duration of the amendment process did not stem from a fundamental disagreement on abortion rights in France. Since its legalization in 1975 through a law sponsored by then Minister for Health Simone Veil, abortion has consistently garnered support from politicians, civil society, and public opinion. It has evolved from a public health measure, which motivated its decriminalization, to being recognized as a fundamental right. The delay to get an abortion has been extended from 10 to 14 weeks of pregnancy, it is reimbursed by the national health system, and hindrance to this right is now considered a criminal offense. Before Dobbs, discussions about constitutionalizing abortion rights were not prominent in French society. Since Dobbs, France has become the first country globally to enshrine the right to abortion in its Constitution, emphasizing protection of access rather than prohibition, which motivates the only other three constitutions that mention abortion (Eswatini, Somalia and Kenya). This significant move has put France on the comparative constitutionalism map.

However, to secure the resounding majority in Congress that voted in favor of the amendment (780 in favor, 72 against, with 50 abstentions), French politicians had to reach compromises to surmount certain concerns, resulting in a watered-down result and weakening the initial ambition of the amendment.

An Issue Unfit for Constitutional Amendments?

One critique which was voiced insistently during the parliamentary works was that the Constitution was not the appropriate venue for addressing the issue of abortion – with the president of the Senate insisting that the constitution should not become a catalog of social or “societal” rights. The argument thinly veils a misogynistic perspective that deems the Constitution too dignified to engage with matters related to uteruses. This viewpoint relies on an essentialist definition of the constitutional document, implying that it should encompass certain substantial topics while excluding others. Overcoming this perspective is possible by adopting a more democratic stance, asserting that the constitution should mirror the will of the people and their representatives, provided the proper amendment procedures are followed, or indeed, a feminist one, that celebrates the perspective of finally breaking with the tradition of silence over reproductive matters that has featured the modern constitutionalist paradigm. There is no clear indication of what constitutes “constitutional material” as long as unamendable provisions, such as the republican form of government in France, remain untouched. This is especially true when it comes to the French Constitution, which has been frequently amended (25 times in 65 years). The fact that the Constitution is also a reflection of what a society values can be illustrated by the adoption of the Charter for the Environment in 2004 and in incorporation in the Constitution in 2005, as well as the prohibition of the death penalty in 2007.

A Call for Caution: The Weakness of the Amendment

Another critique goes in the opposite direction. It contends that the wording and position of the new paragraph in the Constitution hinder the amendment’s actual effectiveness.

The very first vote on the amendment had much bolder language indeed: “No one may interfere with the right to access abortion and contraception. The law guarantees free and effective access to these rights to anyone who so requests.” This provision was initially included in the Constitution’s judiciary section, following the guarantee of individual liberty by judicial authority and the prohibition of the death penalty (Articles 66 and 66-1, respectively). Importantly, the amendment as it was finally voted is located very differently in the constitutional text: it consists of a new segment of Article 34, which is the legislative powers section. It states: “The law determines the conditions under which a woman’s guaranteed freedom to have recourse to a voluntary interruption of pregnancy is exercised.” The inclusion of the word “guaranteed” resulted from a compromise between the National Assembly (which emphasized the law guarantees) and the Senate (which emphasized the law determines, without guarantee or protection). President Emmanuel Macron intervened, bridging the gap and embodying national unity during the last year. The year was challenging indeed considering that his party does not command an absolute majority of the lower house (but only a relative one), which made it complicated to pass controversial legislation such as the contested retirement and immigration reforms. What is a factor of irreconcilable difference and division in the United States has emerged in France has a moment of national unity.

Will the final wording of the amendment prevent all potential challenges to reproductive rights in France? No. Will it make it more difficult to reverse such rights? Yes. The Constitutional Council, responsible for judicial review of legislation in France, is likely to find a solid foundation in this amendment for justifying the rejection of laws that dispute or negate the right to abortion, but not for laws that severely restrict it.

The Constitution Should Not Look Abroad: Constitutional Nationalism

Another obstacle revolved around a form of constitutional nationalism, suggesting that the supreme law of the land should not respond to foreign legal and political developments but rather focus solely on the domestic situation. With this argument, the Senate initially rejected the amendment arguing that, contrary to the United States, abortion rights were not under any threat in France. While such arguments should hold little sway in a European Union member state, where national constitutions have coexisted with shared supra-national principles for decades, it was the inclusion of transatlantic politics that particularly irked French senators last year. Understanding what led to a change in their stance is intriguing. Was it the unifying leadership of the President, who took charge of the amendment project, that persuaded hesitant politicians? Or was it the realization, evident in speeches before the vote, that France would not merely follow the United States but instead emerge as a pioneer in the liberal world? In any case, the required majority of 3/5 of Congress (512 members) was not only achieved but significantly surpassed, with leaders from all parliamentary groups reaffirming their global support for abortion rights.

A Fear of too Much Reproductive Justice

One of the reasons why the final wording is so weak is the fear that recognizing a full-blown “right” to reproductive autonomy would restrict too much the freedom of doctors. The gender-neutral wording and recognition of the right to access contraception, which featured the initial wording of the proposed amendment, went lost along the way.

One of the reasons was to protect physicians’ right to conscientious objection. The political parties that had proposed the constitutional amendment in the first place are now suggesting that the protection for “conscientious objectors” be repealed, but this legislation has few chances to pass.

A Political Scheme?

It could also be argued that the amendment is merely a political scheme. It undoubtedly offers president Macron an easy and free win. The initial work of putting the topic on the table was not his as the amendment came from the left of the aisle in Parliament. The parties had to discuss the issue and reach compromises, including in the conservative Senate. The executive only stepped in quite late in the process (the executive’s proposal was only introduced in December 2023, while the votes in both houses date back to November 2022 and February 2023), and seemingly under the pressure of the parliamentarian left who threatened to pursue the parliamentarian track to constitutional amendments – which would have implied a referendum on the issue, an option that Macron might have felt was too dangerous for him.

The amendment is very popular with an approval rate that politicians can only dream of, especially among the youth. Because it does not change current law, it will also not incur any additional costs to social security. Both in terms of domestic and international politics, it is a political statement and not a substantial legal change, and as we know, words are cheap.

In the End it’s All About Symbols

Some argue that the amendment has a mere symbolic nature and for that reason, it should not have been pursued. This perspective fails to persuade those who scrutinize the French Constitution and constitutions in general. What do constitutions contain if not symbols? Alongside the well-known Republican motto Liberté, égalité, fraternité, the national flag’s colors, and the national anthem, symbols are integral components of the supreme law of the land. There is nothing wrong with constitutional symbolism as long as fundamental rights are subsequently implemented with legislative and executive measures and do not remain mere symbols. There is especially nothing wrong with symbols like acknowledging the profoundly political nature of reproductive rights and thereby righting a historical wrong.

The constitutional amendment seeks to make a promise to the world and to future generations. We will have to wait to see if French politicians, judges, and lawyers will fulfill that promise. For now, despite the perception of a constitution that appears more adaptable than that of the United States, France experiences its own form of constitutional immutability in the bill of rights. This is similar to the process happening in many States of the United States. Both the 1789 Declaration of the Rights of Man and Citizen and the 1946 Preamble containing socio-economic rights are integral parts of the constitutional texts and are deemed unamendable, as they are fixed in the moment of their initial adoption. Nevertheless, it has been demonstrated that the Constitution can evolve to incorporate new fundamental rights, even if their positioning and formulation may not align with our initial expectations.