Abortion in the Constitution threatens both the conscience clause and freedom of expression

On February 1^st, the Senate will vote on the proposal to introduce the "right to abortion" into the Constitution by adding a new article, 66-2, as follows: "The law guarantees the effectiveness of and equal access to the right to voluntary termination of pregnancy”. Even if this proposal in itself does not modify the conditions of access to abortion, it will have the direct effect of threatening the freedom of conscience of medical personnel and restricting freedom of expression. Senators need to be warned of this very real threat.

Tribune originally published in French on Le Figaro Vox on January 31, 2023.

A proposal that threatens freedom of conscience

Twice, in 2018 and 2020, environmentalist and socialist deputies and senators have undertaken to remove the conscience clause for abortion. According to the explanatory memorandum of the 2020 bill, the elimination of the clause was necessary in order "to alleviate the stigmatization [of women] and the difficulties of access to abortion caused by this . . . conscience clause”. These attempts have come up against the opposition of the unions of gynecologists and obstetricians, as well as that of the National Consultative Ethics Committee (CCNE in French) which considered, in its opinion of December 8th 2020, that "the specific conscience clause underlines the singularity of the medical act represented by abortion" and should be maintained, both for ethical and practical reasons. These two attempts at eliminating the clause were thus rejected by the legislator.

This time, it is in an indirect and discreet  - though equally dangerous - way that the proposed constitutional revision threatens freedom of conscience. This is because by committing the State to guarantee the "effectiveness" of access to abortion, it obliges the legislator and the administration to remove the obstacles hindering abortion. Conscientious objection is presented by the promoters of abortion as the main obstacle to abortion in France.

Once a constitutional right to effective access to abortion is recognised, what would become of the conscience clause, which only has legal value? It would become possible to justify its abolition in the name of the constitutional objective of effective access to abortion. This could be achieved by Parliament, by repealing the clause, or by a priority question of constitutionality addressed to the Constitutional Council on the occasion of a case brought against an objecting doctor.

Admittedly, the guarantee of the conscience clause was an essential condition for the de-criminalization of abortion, and the Constitutional Council recognized the constitutional value of "the freedom of persons called upon to resort to or participate in an abortion" in its decision of January 1975. But if the right to effective access to abortion is enshrined in the Constitution, the Constitutional Council may have to weigh it against freedom of conscience. It could then consider that this is sufficiently guaranteed by the ethical right granted to all doctors, midwives and nurses "to refuse care for professional or personal reasons", "except in an emergency or cases in which they have a humanitarian duty", or by the ability to change profession or specialty. And so no doctor, midwife or nurse would be materially obliged to practice or prescribe an abortion; but ultimately his objection would be at the cost of his resignation, or the choice of another profession.

The working model of these health professionals would thus be lowered and aligned with that of pharmacists who, although delivering pills for medical abortions, do not have a conscience clause. The deletion of the clause would make it possible to condition access to all or part of the medical profession on condition of the acceptance to perform surgical or medical abortion, and would justify the dismissal of objectors, as is already the case for pharmacists. French justice has already validated the dismissal of objecting pharmacists (Court of Appeal of Paris, September 18, 2018). As for the European Court of Human Rights, it has ruled that discrimination in hiring a midwife because of her refusal to perform abortion does not violate her freedom of conscience (Grimmark and Steén v Sweden, 12 March 2020).

Regarding the ethical right of doctors, midwives and nurses to refuse care, it would probably not be more effective than that of pharmacists to "refuse to dispense a drug" guaranteed in article R. 4235-61 of the code of public health. More generally, if the legal conscience clause is removed, we do not see why the ethical clause would be respected. This ethical right is less a right than an exception to an obligation of care, because it is only possible in the presence "of an essential and determining personal or professional requirement of the quality, safety or effectiveness care" (article L.1110-3 of the public health code). Failing this, the practitioner can be condemned for "discrimination in access to prevention or care". Objectors would therefore need to justify themselves on a case-by-case basis and expose themselves to disciplinary and legal proceedings, the terms of which have already been facilitated by the law of January 26, 2016. Suffice it to say that objecting practitioners would be at high risk of harassment.

This is therefore by no means a fictitious danger.

Today, in law, abortion remains an exception, with respect for life the principle. This appears clearly in the statement of article 16 of the Civil Code, according to which "The law ensures the primacy of the person, prohibits any attack on his dignity and guarantees the respect of the human being from the beginning of his life.” The reminder of this principle forms an introduction to the book of the Public Health Code devoted to abortion (articles L. 2211-1 to L. 2223-2).

If abortion is established as a constitutional right, then all law relating to abortion and prenatal life would have to be reorganized around this principle. From an exception, abortion would become a principle, while the principle of freedom of conscience, conversely, would become, at best, an exception. The CCNE seems to confirm this when it writes in 2020: “it may be difficult to remove it [the specific conscience clause] as long as a right to abortion is not recognized. »

This reorganization around the constitutional right to abortion would affect other essential legislative provisions, in particular article 16 of the Civil Code, which would contradict the Constitution. It would also affect other freedoms, in particular freedom of expression.

A proposal which threatens freedom of expression

Already in 2014, the legislator extended the offense of obstructing abortion in order to fight against websites and pro-life activists accused of exerting pressure on pregnant women in distress. Since then, people who try to "prevent the practice" of an abortion, in particular "by exerting moral and psychological pressure" are liable to two years' imprisonment and a fine of 30,000 euros (art. L. 2223-2 of the public health code).

The proposed constitutional amendment would further restrict freedom of expression, because “enshrining” abortion in the Constitution makes it a value, a “dogma” that places it above doubt and democratic discussion. Criticizing abortion would then amount to opposing a value of the Republic. Freedom of expression and political debate would be considerably reduced. Abortion should not, however, remain a taboo subject.

This constitutional revision project is not defensive, but offensive

The paradox of this parliamentary initiative is that access to abortion is not, and has never been threatened in France since the Veil law. True, it is said that there exists a growing number of conscientious objectors to abortion. But the scarcity of gynecologists and obstetricians agreeing to perform abortion has been largely compensated for by the spread of medicalised abortion, which represents 70% of abortions in 2019 (according to DRESS) and which can be prescribed by any doctor or midwife, even via video consultation, and by the authorization granted to midwives to carry out surgical abortions. Moreover, the increase in the price of abortion since 2022 has made this practice financially attractive. Thus no woman in France is prevented from having an abortion, and access to abortion is in no way threatened. As proof, the number of abortions has never been so high in France, reaching 223,000 in 2021, unlike our European neighbours where it is less than half that number and continues to decrease.

As for the threat of the abolition of abortion by a hypothetical parliamentary majority hostile to abortion, that has already been neutralized by the decision of the Constitutional Council of June 27th 2001 to view abortion as stemming directly from the constitutional principle of individual freedom.

It therefore appears that the objective of this constitutional revision project is not defensive, but offensive. Its goal is not so much to protect abortion as to emancipate it from its status as an exception to respect for life to make it a right in itself, an organizing principle. This would not only have enormous symbolic power, but also devastating consequences for the rights and freedoms based on the previous principle of respect for human life, in particular on the freedoms of conscience and expression.

Even Simone Veil would turn in her grave. It is she who declared before the Assembly "I say it with total conviction: abortion must remain the exception, the last resort for situations without any other solution", specifying, about abortion law "that even if it no longer prohibits abortion, it should still not create any right to it". As for the conscience clause, she gave the assurance that "it goes without saying that no doctor or paramedic will ever be required to participate".

Let us hope that the Senate will not prove her wrong.