France: Will Opposing Abortion Soon Be Forbidden?

Interview published on March 13, 2024, in L’Homme nouveau, French catholic newspaper, in reaction to the constitutionalizing of abortion.

On March 8^th, the seal of the Republic was affixed to the constitutional law concerning the freedom to resort to abortion after several bills were submitted since June 2022. What does the finally adopted article entail?

The first two bills claimed to insert into the Constitution a “right to abortion,” formulated as an “absolute” right. The Senate rejected them. The article proposed by the government and adopted on March 4^th is worded as follows: “the law determines the conditions under which the freedom guaranteed to women to resort to an abortion is exercised”. This “guaranteed freedom” now enshrined in the Constitution, leaves great flexibility to the Constitutional Council. The Government and most MPs have asserted that their intention was not to restrict freedom of conscience and expression, but they are responsible for interpreting the Constitution. It is the Constitution Council that will interpret and apply this “guaranteed freedom” of abortion in the coming years.

How do you explain that this first version of an “absolute right” was not adopted?

This idea of an absolute right was as extreme as it was absurd. The formulation of the bills placed abortion above other fundamental rights, making it a right that “no one can infringe” and from which “no one can be deprived.” When a fundamental right is absolute, it means that it cannot be limited, either by the rights or needs of others or by general interest. Absolute rights are very few and are linked to human dignity. For example, there is an absolute right not to be subjected to torture. If an absolute “right to abortion” had been integrated into the Constitution, it would have removed all limits on abortion. The legal deadline as well as the conscience clause would have become unconstitutional.

Most rights limit each other and consider common good for society. For example, freedom of expression is not absolute: it is forbidden to advocate terrorism or racism. Through the “guaranteed freedom” of abortion, the Constitution makes abortion a freedom like any other. It is not an absolute right, but it is still a freedom in competition with “real freedoms,” such as those of expression and conscience. The Senate had the possibility to block this constitutionalization but bowed to the government’s text.

The relevance of constitutionalization has been questioned by some, as the process was defended by its proponents by using the fear of seeing abortion one day restricted, or even banned. However, on March 4^th, the Parliament, gathered in Congress, overwhelmingly approved the bill by 780 votes to 72. Is this fear justified or merely imagined?

Clearly imagined. No parliamentarian dared to question abortion itself. Who can believe that in France the majority of parliamentarians would lose the next elections and be replaced by “anti-abortion” ones?

In any case, threatened or not, abortion has nothing to do with the Constitution from a purely legal point of view. The Constitution defines the purpose of the institutions: the Presidency of the Republic, the Government, the Parliament, the judiciary, etc. It does not include individual rights and freedoms, or only incidentally. Abortion was included in Article 34 of the Constitution, it is a technical article, delimiting the scope of the law. Abortion is off topic.

What are the risks now?

Abortion has now acquired a greater normative value. By becoming constitutional, it is binding on the legislature. The “guaranteed freedom” of abortion now takes precedence over laws protecting freedom of expression or conscience, due to the hierarchy of norms.

Currently, the exercise of the conscience clause does not prevent the freedom to resort to abortion in France. There is therefore no competition between these two “freedoms.” But, if one day the majority of healthcare professionals become “conscientious objectors,” as in Italy, the conscience clause will hinder access to abortion. In the event of a dispute initiated by a woman wishing to have an abortion, the Constitutional Council could then declare this clause unconstitutional.

This type of dispute can be deliberately provoked by associations. It is common. We call these cases “strategic litigation.” They are created from scratch and aim not at protecting a “victim” but to demonstrate that the law prevents access to a certain “right.” Now that abortion is a “guaranteed freedom” at a constitutional level, it is likely that associations will seek to target objecting healthcare providers in order to repeal the conscience clause.

On February 27^th and 28^th, just before the vote in the Senate, you invited twelve women to come and testify before parliamentarians about the abortions they had experienced, notably mentioning their suffering. Will these initiatives still be possible now that the law has been adopted? Will we still be able to publicly denounce abortion, march for the defense of life?

When listening to these women, it was striking to see the gap between the reality of abortion and parliamentary debate. Abortion is not experienced as a “freedom.” Nothing is done to protect women from the pressure to have an abortion. Abortion is sometimes almost forced. The eleven parliamentarians I met – including those from the presidential majority – were deeply moved by the interventions of these women. Some told us they would commit to developing policies, especially to protect women from pressure to abort. This is good news.

Constitutionalizing abortion denies the suffering of these women. It is also a denial of the suffering of men, whose children can be aborted without their consent. This suffering is not that of medical procedure gone wrong or with side effects. It is the suffering that results from the loss of a children, put to death in French hospitals… and even at home.

After this constitutionalization, will opposing abortion be considered contrary to the laws of the Republic”? Some associations, like Civitas have been dissolved on the grounds that they opposed the republican regime. If the pro-life discourse becomes “anti-republican,” it could be strongly repressed.