The day is historical. This Monday, March 4, France became the first country to explicitly authorize voluntary termination of pregnancy (abortion) in its Constitution. For the 17th time in sixty-six years, all parliamentarians met in Congress in the South wing of the Château de Versailles. A large majority – 780 out of 925 – approved the introduction into Article 34 of the basic text of the sentence: “The law determines the conditions under which the freedom guaranteed to a woman to have recourse to a voluntary interruption is exercised. pregnancy”. This vote is the 24th revision of the Constitution of the Fifth Republic since its promulgation in 1958.
While abortion is threatened throughout the world, particularly in the United States, this day was highly symbolic. But what will be the place of this decision in the history of the Fifth? To answer this question, L’Express spoke with Laurie Marguet, lecturer in public law, specializing in the law of fundamental freedoms.
L’Express: Is the impact of the vote that took place today in Versailles similar to that which allowed the constitutionalization of the abolition of the death penalty?
Laurie Marguet: Yes and no. Yes, this decision is comparable, in the sense that the constitutionalization of the abolition of the death penalty, like that of abortion, was made at times when these two rights were not necessarily in danger. The law abolishing the death penalty was promulgated on October 9, 1981, when its inclusion in the Constitution took place more than twenty-five years later, on February 23, 2007. In the same way, there is no moment no decline in abortion in France, authorized by the Veil law on January 17, 1975. Above all, we include these rights in our fundamental law for symbolic purposes to, in the first case, highlight the importance of human life for the prohibition of the death penalty, and, in the second, the reproductive and sexual rights of women. These are two moments when politics wanted to enshrine these fundamental rights in the constitutional text, not out of necessity, but because the national or international context made this inclusion propitious. There is therefore indeed a possible comparison regarding the scope of the political message.
Things are different on a technical level. The abolition of the death penalty is enshrined in an article in its own right, article 66-1 of the Constitution, which states that “No one may be sentenced to death”. A sentence therefore prohibits death sentences. The wording is different for abortion, which is enshrined within article 34 of the Constitution. The latter has a very specific function: to list the subjects and themes which can only be regulated by law. When you want to modify something related to one of these themes, you absolutely must involve Parliament. The government can therefore no longer affect abortion directly, through a regulatory text. But this change is not an upheaval either: it amounts to saying that abortion can only be modified by law. In theory, the legislator can therefore legislate to limit access to abortion.
Does this inclusion in the constitution therefore not protect abortion?
Yes, because of a word. The real added value of the text adopted today lies in its formulation. It is specified that abortion is a freedom “guaranteed” by law. The word “guarantee” is very important: it normally means that the legislator cannot intervene to suppress abortion. However, we do not know the extent of the protections that will be attached to this “guarantee”. Only one thing is certain: a law which would abolish abortion would now be contrary to article 34. But the question remains: a law which would reduce the legal period for having recourse to abortion from 14 to 12 weeks, or which would limit its free provision, could perhaps not be considered by the Constitutional Council as threatening the “guarantee” of abortion – and end up being adopted.
If we follow you, there are therefore fewer protection “locks” on abortion than on the abolition of the death penalty. How to explain it?
The explanation is political. A year and a half ago, a first version proposed to include in the constitutional text that the law guarantees “effectiveness” and “equal access” to abortion. Its defenders wanted this text not to be in article 34, but in a separate article. This version was never accepted by the Senate, which indicated that it was out of the question to go so far in protecting abortion. The Upper House then proposed an inclusion of abortion at a minimum in the Constitution, with only a mention within article 34. This did not change anything in the protection of the text in the law. In the new version, the one voted on March 4, the government tried to bring the National Assembly and its more progressive vision into agreement with the Senate and its more conservative vision. A compromise was adopted: keeping the idea of the Senate version (article 34) but adding the word “guarantee” to prevent excessive possible attacks on abortion.
This inclusion in the Constitution comes at a time when access to abortion is threatened around the world. We are thinking in particular of the United States, with the overturning in 2022 of the Roe vs. Wade ruling, which guaranteed the right to abortion in the United States. Is this the first time that a modification of the Constitution has been so influenced by the international context?
The constitutionalization of the abolition of the death penalty was totally influenced by the international context. When international conventions for the protection of human rights were ratified, the Constitutional Council raised a problem: the Constitution, which did not prohibit the death penalty, was in disagreement with these pacts. We therefore had to change our fundamental law to be able to integrate them. This is therefore not the first time that we have changed our Constitution due to international news. It is however true that it is rare that there is so much acceptance of the fact that a foreign decision influenced the constitutionalization process. But this is indeed linked to the fact that the removal of the Roe vs. Wade had the effect of a bomb.
Questioned on the question, the President of the Senate, Gérard Larcher, declared that the Constitution was “not a catalog of social and societal rights”. Is this question a matter of debate among constitutionalists? Do some people consider that the Constitution can be modified at will, while others do not?
There is a debate between constitutionalists on this point. Some think of the Constitution as a sacred text, which should not be touched too much. It’s a somewhat traditional concept: the text was created in 1958, in a rather pragmatic way, with the aim of designing a “mode of use for the State”. It is therefore necessary, according to them, to keep it that way. On the other side we find those who point out that, even in 1958, certain rights were enshrined in the Constitution, such as the principle of equality. Symbols have also been added, such as the Marseillaise, or the tricolor flag. Some things are symbolic, even if we do not actually create a catalog of fundamental rights like in Germany. These constitutionalists believe that from a legal point of view, nothing prevents us from adding rights or changing the way we perceive the text.
.