Abortion: a constitutional revision formulated as a death sentence

The creation of a "right to abortion" in the French Constitution will be debated for the second time in the Senate over the next few days. On this occasion, Nicolas Bauer, associate researcher at the European Centre for Law and Justice (ECLJ), expresses surprise that such an insertion is envisaged within Title VIII, devoted to judicial authority. In his view, this political choice makes no legal sense.

Opinion column published in Valeurs Actuelles on January 20, 2023.

In October 2022, the Senate opposed the inclusion of a "right to voluntary interruption of pregnancy" in the Constitution. On February 1, 2023, it will once again be asked to vote on the subject. This time, the constitutional bill to be debated has already been adopted by the National Assembly. It was tabled by MP Mathilde Panot, president of the La France insoumise-Nupes group in the Assembly.

The text, largely modified by the Assembly, reads as follows: "The law guarantees effective and equal access to the right to voluntary interruption of pregnancy." If the constitutional revision procedure is successful, this sentence will become article 66-2 of the Constitution. Such an insertion of a "right to abortion" in a constitution has only one precedent: Tito's communist Yugoslavia.

The bewildering choice of Title VIII, "On judicial authority"

Mathilde Panot has indicated that she wishes to create an article 66-2 "to inscribe this principle [of the right to abortion] among the fundamental freedoms of the individual, in the same way as the prohibition of the death penalty." In 2007, a constitutional revision had already created an article 66-1 enshrining the abolition of capital punishment. The "right to abortion" would thus be added to the principle that "No one may be condemned to the death penalty." Aurore Bergé, president of the Renaissance group in the French Assembly, approved this choice.

However, articles 64 to 66-1 belong to Title VIII of the Constitution, which is entitled "On Judicial Authority." In other words, this is the chapter of the Constitution that deals with the organization of justice. It deals with the independence of the judiciary (article 64), the Superior Council of the Judiciary (article 65), and prohibits arbitrary detention (article 66). The addition in 2007 of a ban on capital punishment (article 66-1) falls under the same theme. However, the relationship between abortion and the judiciary is not immediately obvious.

An ideological instrumentalization of the Constitution

To justify such a report, Ms. Panot and Ms. Bergé invoked a clarification found in Article 66 of the Constitution. In it, the judicial authority is described as the "guardian of individual freedom," a freedom which would include abortion. This reasoning is flawed, as Article 66 deals with the judicial framework. This has been pointed out by three professors of public law, all of whom are pro-IVG activists. They believe that the creation of an article 66-2 is inappropriate, "since by definition it is a question of enshrining a right [...] outside any judicial procedure."

Ms. Panot and Ms. Bergé had considered various places in the Constitution to insert a "right to abortion", but said they had found none more appropriate. In reality, the 1958 Constitution was not designed to enshrine individual rights, but to organize state institutions. The idea of adding a catalog of rights is based on foreign models. This argument is of little value to France Insoumise, whose ultimate aim is to replace the Constitution with another "catch-all" of left-wing values.

Condemnation of the innocent and rehabilitation of the guilty

In the absence of any real legal motivation, the proposal to insert abortion after the ban on the death penalty has a political explanation. The idea is to build on a previous constitutional revision, which had been approved by Parliament. In 2007, only 26 out of 876 members of parliament opposed the constitutional abolition of capital punishment. For Aurore Bergé, "abortion is an intangible principle and must remain so, in the same way as the ban on the death penalty."

This reference to the abolition of the death penalty is obviously paradoxical. The ban on the death penalty was designed to preserve the lives of the worst criminals. The "right to abortion", on the other hand, promotes the legal killing of innocent children. A judiciary with such a constitutional base could no longer claim to dispense justice. It would condemn the innocent, while conferring absolute dignity on the guilty, thus reversing the founding principles of civilization.

 The aborted child, a Christ-like figure

Article 66-1 of the Constitution and the proposal to add an article 66-2 to it highlight a double standard with regard to respect for human life. The unborn child, whose existence is threatened by abortion, becomes a Christ-like figure. Like Pontius Pilate regarding Jesus, we find "no cause for condemnation" in this child, and yet it can be condemned to death. Conversely, the worst criminals, such as Barabbas in the Gospel, escape such a sentence.

Justice is often symbolically represented by a blindfolded woman holding scales and a sword. By creating an article 66-2 of the Constitution, the sword of justice would be used without its scales, against innocent children. They would indeed be the only people whose lives would not be spared by this sword of justice. The blindfold on the woman's eyes would then represent not the impartiality of republican justice, but its blindness to the reality of abortion.