Inclusion of abortion as a symbolic deed in the French Constitution

 (Nour-Jihane Dahman/ February 23rd, 2023)

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On February 1st, 2023, many parliamentarians of all political backgrounds applauded the adoption of a text to include abortion in the French Constitution by the Senate (the majority of which is on the Right). This bill, which was approved by a vote of 166 in favor and 152 against, is part of the desire to make abortion a sacred constitutional right in France.

However, the text approved by the senators, which they first challenged after heated debates on October 19, 2022, no longer reflects the version widely adopted by the National Assembly in November 2022. Members of parliament would have “emptied the bill” of meaning by replacing key terms.

The National Assembly must still approve this before it can be considered officially adopted.

Why include abortion in the French Constitution?

Following the Supreme Court of the United States decision to overturn the Roe v. Wade decision, which guaranteed access to abortion at the federal level, several political figures in France declared their intention to advance the issue by securing the constitutional protection of the right to an abortion in order to prevent, or at the very least, make more difficult, any potential future changes. Aurore Bergé, the leader of the Renaissance group in the National Assembly (and a former member of LREM), or the Insoumise Mathilde Panot and the Ecologist Mélanie Vogel are a few of them. On the Left, deputies have attempted to make this proposal before without success so far.

The Veil law of January 17, 1975 granted in France the legal right to abortion, and this right has never been questioned since then. In 2020, it was the subject of a parliamentary report which resulted in another law of March 2, 2022 aimed at strengthening this right, with, in particular, the extension of the limit to the fourteenth week of pregnancy.

Previously to the Veil Law, abortion was illegal and subject to imprisonment. This authorization was made official by the law of December 31, 1979, but it still counts as an exception under the law to the criminal offense of abortion. Abortion became a right in 1992 with the introduction of the new Penal Code, and it was reaffirmed in the following laws of 2001, 2014, and 2022.

The legal limit of the 10th week of pregnancy (12th week of amenorrhea) to have an abortion was pushed back to the 12th week of pregnancy (14th of amenorrhea) in 2001, and from March 2, 2022 to the 14th week of pregnancy (16th of amenorrhea).

Aside from that, the use of abortion pills was approved in hospitals in 1989, expanded to city medicine in 2004 and family planning and education centers (CPEF) in 2007. Since 2016, health centers have been permitted to perform instrumental abortions, and midwives have the option of performing medical abortions. Since 2016, all acts related to abortion have also been fully refunded.

The law passed on March 2, 2022 was intended to strengthen the right to abortion, extend the legal window to 14 weeks of pregnancy, and perpetuates the city’s decision to extend the window for medical abortion recourse from 5 to 7 weeks of pregnancy in response to the health crisis.

However, professionals deplore that access to abortion remains fragile, because in practice the opportunity for abortions is unequal depending on the profile, place of residence, or social level of women, as shown in the latest report of the DREES, published on September 27, 2022.

The main explanation for the difficulties of access to abortion is essentially the result of a lack of interest in a medical act that is undervalued and considered to be of little value,” explained Marie-Nolle Battistel and Cécile Muschotti. The burden of effectively defending this right falls primarily on a small group of militant practitioners, many of whom will soon retire.

And finally, there is also the vexing issue of the conscience clause. Feminist organizations are campaigning for the repeal of the conscience clause for voluntary interruption of pregnancy (IVG), which they believe is limiting women’s access to abortion. Except in cases of life-threatening emergency, any practitioner “has the right to refuse treatment for professional or personal reasons,” according to the code of ethics for doctors. We then speak of a double conscience clause in the context of abortion because, under the Public Health Code, a doctor “is never required to perform a voluntary termination of pregnancy but he must inform, without delay, the interested party of his refusal and immediately communicate to him the name of practitioners likely to carry out this intervention”.