On March 4th, the French parliament finally approved an amendment to article 34 of the French constitution, explicitly enshrining the right to have access to abortion. The vote was 780-72 in favor of the amendment.
The process was started on 6 July 2022 in the wake of the repeal of Roe vs Wade by the Supreme Court of the US; in particular, the reasoning by the majority opinion in the reversal that said that “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”. The original bill for the proposal of an amendment was passed on 24 November last year, in January it was approved by the National Assembly, and in February by the Senate; the last hurdle to be cleared was the vote on March 4 by the joint chambers.
France is the first country in the world to ever explicitly incorporate the right to have an abortion (calling it as such) in their fundamental law.
The text added to item 18 of Article 34 of the French constitution says:
“La loi détermine les conditions dans lesquelles s’exerce la liberté garantie à la femme d’avoir recours à une interruption volontaire de grossesse.”
Translated: “The law will determine the conditions in which will be exerted the guaranteed right for women to receive a voluntary interruption of pregnancy.”
In other words: women have a guaranteed right to get an abortion if they so wish, and the law will determine how that will be carried out. But the right of a woman to have an abortion if she so wishes must not be infringed.
@Pleonast: The text specifically mentions women. But, how would someone who is not a woman (biologically speaking) be able to have an abortion, understood as “voluntary interruption of pregnancy”?
Regarding the conditions under which the law right now allows abortion, they are:
-No questions asked until 14 weeks after conception (16 weeks after the pregnant woman’s last menstrual period).
-Abortion at later stages of pregnancy up until birth (if the woman asks for it) are allowed if two physicians certify that the abortion will be done to prevent injury to the physical or mental health of the pregnant woman, a risk to the life of the pregnant woman, or that the child will suffer from a particularly severe illness recognized as incurable.
I personally do not think that this law will be changed significantly in the future (if anything, with time the law has become more lenient. When it was first approved in 1975, abortions were permitted until 10 weeks after conception, or 12 weeks after the pregnant woman’s last menstrual period). Of course, one never really knows - but it does not seem that there is a particular appetite among the French political class to change these things. The constitutional amendment passed with broadly all-partisan support in the French parliament.
Kudos to France for the principle, though I wonder if it was strictly necessary to explicitly enumerate it in the constitution. I guess it depends on what other rights their constitution guarantees. In Canada the constitution guarantees the right to security of the person, which the Supreme Court interpreted to include the protection of reproductive rights. That ruling invalidated all abortion laws.
The constitutional amendment was explicitly introduced to prevent some kind of reasoning from a future Supreme Court in France that would go along the lines of the reasoning used by the majority opinion of the US Supreme Court when they overturned Roe vs. Wade (“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”), and to prevent any future French government from completely overturning the existing laws that allow for abortion to be carried out in France.
In the Canadian case, it might happen that a future Supreme Court overturns that interpretation (that the right to the security of the person includes the protection of reproductive rights), and that would make it possible for the laws that restrict abortion to come back.
Without hijacking this thread with what it means to be a woman, laws protecting fundamental human rights should be written broadly so that they cover unforeseen circumstances.
My wife is a professional translator and came up with the following translation of the French law:
“The law will determine the conditions under which a woman can exercise the right to terminate a pregnancy.”
It happened a number of times during her career that when one of her translations went back to the person who had written the original French document, they modified the original to incorporate the clarifications she had introduced.
As written, that line sounds like it means the law could decide that there are few or no such conditions under which a woman can exercise her right to terminate a pregnancy.
Is there anything to prevent that interpretation? If not, that doesn’t sound like it actually enshrines the right into law, but relies on good people interpreting it.
From my understanding of French, and from the translation, the wording seems a bit strange, namely that the concept of “conditions” seems rather at odds with the concept of “la liberté garantie” – i.e.- it seems to speak of a guaranteed right, but subject to such conditions as determined by law. A plain reading seems to suggest that they’re leaving the door open to prohibiting abortion past a certain stage of gestation.
In theory, yes, but reasonable courts adhere strongly to the principle of stare decisis – to stand by precedent unless there’s a very compelling reason to do otherwise.
In the US it was like that until it wasn’t. Also, in France the legal system is different and does not rely so much in precedent, but in the law as written (Napoleonic code).
Indeed. But, then, nothing is truly irreversible. What can be done is to make it harder to revert.
Most likely that was the most acceptable redaction that could be agreed to. Definitely, though, it would not be possible to say “no conditions”, given that that would make it impossible for a woman to exercise her right to terminate a pregnancy, right which is explicitly mentioned in the text.
Would it be possible for a future government to specify an incredibly restrictive set of conditions? Yes, it would. Would that government survive the next election? That is another story and would likely enter into the calculations that anyone tempted to do such a move would undoubtedly make.
I wonder if in the future France could become a Mecca for those wanting to abort a pregnancy. Does the law specify that the right applies only to French citizens?
That’s too broad an interpretation of Morgentaler. There was no majority set of reasons. Taken together, the three judges who wrote for the majority concluded that the inherent delays and roadblocks in the Criminal Code provisions interfered with women’s security of the person, contrary to the principles of fundamental justice. The decision of the Court did not establish a general right to an abortion.
Subsequent attempts to create new federal restrictions on abortion failed in Parliament. The first bill was defeated in the Commons. The second bill passed the Commons but was defeated in the Senate. They were never considered by the courts.
That’s all technically correct, but it has become a distinction without a difference. Here’s a CBC article that tries to make exactly your point, but actually ends up not making it. One compelling argument for why this is so is Carter v Canada (2015), which overturned a law against medically assisted dying. According to law professor Daphne Gilbert,
“The things that they talk about — about the importance of decision-making, control, bodily autonomy, your right to choose how you live your life — if the question had been abortion, it would have been exactly the same,” she said.
But even back in the Morgentaler case, the opinion of the Chief Justice and a separate one from a different Justice supported abortion as a basic right, but you’re correct that the court as a whole didn’t rule on this. The point being that since then, times have changed so much that the fundamental right to an abortion is now well entrenched in the culture.
I don’t know what the political climate is in France but I do find it curious that the wording of the constitutional amendment – unless I’m misreading it – seems to leave lots of room for future laws to impose restrictive conditions, though not ban abortion entirely. .
The ultimate safeguard of basic human rights is an enlightened culture; without that, no law, no precedent, nor even a constitutional provision will be safe from political machinations.
Good question! It seems it doesn’t. Any woman in France has the right to do so. According to this webpage from the French government:
« Je n’ai pas la nationalité française, puis-je avoir accès à une IVG ?
Toutes les femmes qui le souhaitent peuvent bénéficier d’une IVG, en France. Il n’est pas nécessaire d’avoir la nationalité française.
La prise en charge à 100% est valable pour les femmes bénéficiaires de l’aide médicale de l’État (AME).
Pour les femmes résidant en France en situation irrégulière, admise à l’AME, il existe une prise en charge des soins urgents (dont fait partie l’IVG) à l’hôpital (hospitalisation ou consultation en établissement de santé).»
Translation:
« I do not have French nationality, can I have access to an abortion?
All women who wish can benefit from an abortion in France. It is not necessary to have French nationality.
100% coverage is valid for women receiving state medical aid (AME).
For women residing in France in an irregular situation, not admitted to the AME, there is coverage for urgent care (which includes abortion) in hospital (hospitalization or consultation in a health establishment).»