by Alessia Riccioli*
The Government Bill
On March 8, 2023, at the Court of Appeal, the French President Emmanuel Macron delivered a speech paying tribute to Gisele Halimi. He took advantage of the ceremony to announce his intention to enshrine the right to abortion in the Constitution.
Gisele Halimi was a Tunisian-born French feminist and lawyer, who died in 2020. She was a preeminent figure for women’s rights advocacy in France. As recalled by the President’s speech, she was the sole woman in her profession to sign the “Manifesto of the 343” published by Le Nouvel Observateur (n. 334, April 5, 1971), whereby 343 women declared that they underwent abortions, fighting the national absolute ban. The year after, the Bobigny trial took place, concerning Marie-Claire Chevalier, raped at the age of sixteen and then denounced by the rapist for having had an abortion. The ground-breaking Gisèle Halimi’s defense marked a turning point, and the trial earned huge public attention. It was a fundamental step toward the legal endorsement of a free interruption of pregnancy, as consequently established in the 1975 law (Loi n° 75-17 du 17 janvier 1975 relative à l’interruption volontaire de la grossesse), proposed by Simone Veil and President Valéry Giscard d’Estaing.
Over this tribute, the President stated that “Gisèle Halimi, par ses mots, avait fait changer la loi” and, consistently, that he wanted that “la force de ce message nous aide à changer notre Constitution afin d’y graver la liberté des femmes à recourir à l’interruption volontaire de grossesse pour assurer solennellement que rien ne pourra entraver ou défaire ce qui sera ainsi irreversible”.
According to Article 89 of the French Constitution, the President (as well as Members of the Parliament) can propose amendments to the Constitution, following the Prime Ministers recommendation. A Government or a Private Member’s Bill has to be passed by the two Houses in identical terms (according to the time limits provided by Article 42). Hence, the amendment shall take effect after approval by referendum. However, as far as a Government Bill, the President can decide to submit it to the Parliament convened in Congress (alternatively to the referendum). In the latter case, the procedure requires the three-fifths qualified majority of the total casted votes.
The Government Bill issued by President Macron concerned Article 34 of the French Constitution, stating that “The law determines the conditions under which a woman’s guaranteed freedom to have a voluntary interruption of pregnancy is exercised”. On February 28, 2024, the Senate approved this Bill with an extent of support, with 267 votes in favour and 50 against, following the last month overwhelming endorsement in the National Assembly (with 493 votes in favour and 30 against), whereby the presidential bill has been voted on January 30, 2024. The day for the Congress meeting was planned for March 4, 2024. The Bill was approved by a large majority in Congress (with 780 votes in favour and 72 against), overcoming the qualified majority required [for a map of votes cast: here]. Thus, France became the first European country to enforce the right to abortion in a national Constitution.
A comparative perspective:
Parliament members have been working on the issue since 2022. Consistently, this political shift towards a constitutional protection of this right was a reaction to the Dobbs decision, delivered by the U.S. Supreme Court on June 24, 2022. This judgment overruled two previous decisions deemed as “super-precedents”, i.e. the two historical judgments on abortion issued by the U.S. Supreme Court in previous decades: Roe v. Wade(1973) and Planned Parenthood v. Casey (1992). These precedents shaped the U.S. abortion legislation until very recently, recognising abortion as a fundamental right (although under the umbrella protection of the so-called penumbras rights, especially the right to privacy). On the contrary, Dobbs denied that abortion is a right embedded in the Constitution, according to an originalist constitutional interpretation, recognising each State normative competence to regulate the issue. As a consequence, a backlash phenomenon occurred in the U.S. since thirteen States enacted the so-called “trigger” laws (referring to anti-abortion laws already approved before the Dobbs decision, but ineffective due to the previous jurisprudence of the U.S. Supreme Court) and other States banned or strictly limited abortion afterward (for an overall perspective: here).
The same occurred in other regions, such as in Europe. In Hungary, for example, on 15th September 2022, the Decree No. 29 was enacted, amending the previous legislation on abortion (Decree No. 32/1992, the implementing regulation for Act No. 79 of 1992 on the Protection of Fetal Life), clearly mirroring the ‘heartbeat bills’ passed in many states in the United States. A well-known example is Senate Bill No. 8 in Texas, effective in September 2021, which banned abortion after the detection of an unborn child’s “heartbeat” (even if this definition does not bear scientific evidence). It also granted a private civil right of action. After Dobbs, Texas’ trigger law – the Human Life Protection Act, HB No. 1280 – took effect on August 25, 2022, banning abortion from the moment of fertilisation.
Nevertheless, positive reactions as well occurred worldwide, both through legislation and jurisprudence. In Latin America, the most recent experiences are Colombia (by decision C-055/2022, issued by the Constitutional Court) and Mexico (with the Supreme Court’s amparo en revisión 267/2023), both recognising constitutional protection to the right to abortion and promoting a periodic model to regulate it. In Europe, Spain approved Ley Orgánica 1/2023, which modified the previous Ley Orgánica 2/2010 on sexual and reproductive health and the voluntary interruption of pregnancy, allowing underage women over sixteen to undergo abortion without parental consent, removing the required reflection period and allowing abortion within the first fourteen weeks. Moreover, in 2023, the Spanish Constitutional Court (Sentencia 44/2023) provided for the constitutional recognition of the right to abortion, grounded on women’s self-determination, referring to their right to dignity, as well as physical and moral integrity.
Worth mentioning the Irish Constitution, amended in 2018 with Article 40.3.3° through the Thirty-six Amendment. Whereas abortion was previously prohibited unless the severe risk for the mother’s life, the Amendment added that “Provision may be made by law for the regulation of termination of pregnancy”. This does not grant a constitutional recognition of the abortion right but provides for a legislative regulation on the matter. Moreover, concerning women’s rights and their traditional gender-based social role, two constitutional bills are going to be voted through a referendum scheduled for March 8, 2024. The Family Amendment (Thirty-ninth Amendment of the Constitution, Bill no. 91 of 2023) would amend Article 41.1.1°, adding the words “whether founded on marriage or on other durable relationships”. It also provides for the elimination of the expressions “on which the Family is founded” from Article 41.3.1° to include durable relationships outside marriage. The Care Amendment (Fortieth Amendment of the Constitution, Bill no. 92 of 2023) would replace Article 41.2 (removing references such as the woman’s “life within the home” and “duties in the home”), with the addition of a new Article 42B on care within the family.
France: Parliamentary attempts for the constitutional recognition of abortion
In France, between June and October 2022, several parliamentary initiative bills were tabled to prevent a backlash on this issue, as a consequence of the Dobbs ruling.
On October 19, 2022, the Senate rejected the proposal by the ecologist Senator Melanie Vogel. Nevertheless, several similar bills have been submitted, both by the presidential majority and the opposition. On the first side, the MP Aurore Bergé (Renaissance) issued an Amendment to add Article 62-2 in the Constitution, establishing that: “no one can be deprived of the right to voluntary interruption of pregnancy” [1].
On the other side, the MP Mathilde Panot, the president of La France Insoumise, proposed another Amendment, which passed in the National Assembly with a historic vote (337 votes in favour and 32 against, and 18 abstentions) on November 24, 2022. On February 1st, 2023, the Senate finally adopted a Constitutional Bill by a narrow majority (166 votes to 152).
Despite the approval by both Houses of Parliament, each draft was rather different. The proposal voted by deputies stated that “The law guarantees effective and equal access to the right to voluntary interruption of pregnancy”, aiming at adding a new Article in the Constitution (No. 66-2). The purpose of the Amendment was twofold: making the right to abortion explicit in the Constitution, but also to formulate an implicit no-regression clause, preventing future less protective laws than the current ones.
Since the limited chances of the Amendment being passed in the Senate, Senator Philippe Bas (Les Républicains), a historic colleague of Simon Veil, issued a substantially revised version (in this case aiming at adding a paragrapher to the aforementioned Article 34 of the Constitution), stating that: “The law determines the conditions under which a woman’s freedom to terminate her pregnancy is exercised”. A heated debate concerned this new version, especially regarding the shift from defining abortion as a “right” to defining it as a “freedom”. However, this change would not have granted less protection to the right at stake. The real issue concerns the entire drafting of this Amendment (as opposed to the other proposed by Berge), which is far less protective of this right, merely affirming the competence of the legislature to regulate the interruption of pregnancy (with a formulation quite similar to the Irish Thirty-six Amendment).
Why the Government Bill
At this point, however, President Macron decided to intervene (not just supporting the parliamentary proposal), advancing his own Constitutional Bill.
The decision to propose a new Amendment seems to be justified by two main reasons: a substantive and a procedural one.
From the former, the President proposal stands as a compromise between the deputies and senators will. It recalls the proposal already approved by both Houses, but adds the fundamental expression “guaranteed” (“La loi détermine les conditions dans lesquelles s’exerce la liberté garantie à la femme d’avoir recours à une interruption volontaire de grossesse”). From this perspective, the right to abortion receives a stronger constitutional protection, providing the Conseil Constitutionnel with a stronger ground to ensure protection in the future.
As for the procedural reason, it concerns the will to avoid the referendum, bypassing the uncertainty embodied in this procedure. Nevertheless, the outcome was not clear. Both academics, especially constitutionalists, are divided on the issue, as well as the political class, referring to the Republicans.
The main argument provided against the constitutional protection to abortion concerned its uselessness, arguing that this right has not been threatened in France and no one in the political class wants to question it.
This claims also link abortion to a trend of declining birth rates, which is actually widespread across Europe. This kind of argument shows why it is essential to give this right a constitutional dimension. In 2022, a French law extended the term for abortion from 12 to 14 weeks (LOI n° 2022-295 du 2 mars 2022 visant à renforcer le droit à l’avortement). The topic ignited the debate, especially considering the demographic downward trend. This argument had already been used in 1975 against the aforementioned Veil’s law.
Further major concern about the recognition of the right to abortion in the Constitution addresses the legislative power to balance competing interests. Nevertheless, it is worth noting that the Bill does not encompass a non-regression clause (e.g. preventing the legislature from balancing differently in the future by providing for a narrower time limit). Indeed, since the interests involved, such a clause would not be desirable either, given the complexity involved in balancing interests and how this may also rely on scientific advancements.
Conclusion
Noteworthy about the proposal is the establishment of a “guaranteed” liberty, endowed with an explicit constitutional protection of the freedom to have an abortion. It certainly grants a stronger constitutional protection also in a jurisprudential dimension. Also bearing in mind that, so far, the Council has always restrained itself, confirming the legislature’s choices, due to its balance in both safeguarding the dignity of the human person and the woman, as grounded on Article 2 of the Declaration of the Rights of Man and Citizen [2]. Thus, there is no doubt that this provision provided a better ground to protect the right to abortion in the French legal system.
*PhD Candidate, University of Pisa
