Impact of a Constitutionally Recognized Right to Abortion

Earlier this month, France adopted a unique and progressive measure, becoming the only country in the world to recognize the freedom to have an abortion in its Constitution. The Constitutional Act of March 8, 2024 includes a single article, amending Article 34 of the Constitution, which now states that

‘[t]he law determines the conditions under which the freedom guaranteed to women to have recourse to a voluntary interruption of pregnancy is exercised’.

Reflecting on this enshrinement allows us to question why it was necessary to introduce such a provision in a constitution, but also whether the amendment, as adopted, is enough to protect the right of women to have an abortion and ensure its effective access.

How Political and Economic Crises Lead to Women’s Rights Being Called Into Question

Simone de Beauvoir, one of France most famous feminist, is reported to have told a famous author that ‘all it takes is a political, economic or religious crisis for women’s rights to be called into question’. These days, democracies are fragile, and undergoing major crises leading to nationalist and identity-based retrenchments. The right to abortion remains vulnerable, even in the western world where it has recently been subjected to some severe restrictions.

The 2022 overturning of Roe vs. Wade ruling, which guaranteed the right to abortion in the United States, sent a terrible signal to all feminists around the world that abortion, even in a developed country, is never a secured issue. This decision enabled states again to regulate any aspect of abortion not protected by federal law and many states reacted soon after: Indiana passed an abortion ban law in August 2022, while other states like Texas, Louisiana, Utah, Ohio imposed harsher restrictions.

We have unfortunately seen similar restrictions in Europe over the past years. In Orban’s Hungary, a law was adopted in September 2022 requiring women to listen to a pulse generated by the ultrasound monitor, which misleadingly dubs the fetal heartbeat, before making a decision to abort. In Poland, since a Constitutional Court’s ruling in 2020, abortion is only allowed in cases of rape, incest or danger to the mother’s health or life – this means that for instance in case of irreversible fetal malformation, abortion is not allowed anymore.

While there is currently no binding international legal instrument protecting the right to abortion in Europe, with the European Court of Human Rights (the “ECtHR”) holding on multiple occasions that Article 8 of the European Convention on Human Rights (the “ECHR”) cannot “be interpreted as conferring a right to abortion”, a certain degree of protection nevertheless exists.

The ECtHR for instance recently held that the new restriction on abortion in Poland following the Constitutional ruling referred above, in so far as it prevented women from terminating their pregnancies despite health reasons, in particular fetal malformation, was in breach of the right to private life of Article 8.

Protecting the ‘Freedom’ of Abortion: Limited Practical Effects?

In France, the Constitution is the supreme norm to which all others legal instruments must conform. Therefore, incorporating a fundamental right into the Constitution gives it greater legal value and makes it more difficult to modify than when it is only guaranteed by law. This constitutionalisation will thus act as a bulwark against changes of majority. While the National Assembly can undo what it has done by a simple law, the procedure is more difficult for a majority wishing, tomorrow, to reform the Constitution.

A constitutional revision, in addition to the procedure to be followed for the adoption of a law, presupposes an agreement in the same terms by the ‘Assemblée Nationale’ and the ‘Sénat’, a definitive adoption either by a reinforced majority vote of three-fifths of the members of the Congress of Parliament (the two chambers combined) or by a popular vote during a referendum. There is now a strong protection, guaranteeing that it would be much more difficult for any new government to try to prevent women from getting an abortion. It remains however to be seen, what, if any, practical effects this will have on guaranteeing the freedom to have an abortion.

Some lawyers and scholars have indeed noted with regret that it enshrines a freedom, rather a right, especially when the text refers to conditions to be determined by the law, may drastically limit the impact of the constitutionalisation. Traditionally, it is the notion of ‘right’ that entails a form of debt on behalf of the State, forcing it to ensure an effective access: ‘a freedom can be restricted where a right must be guaranteed’. Since it is the first time that the notion of ‘freedom guaranteed’ is used, it remains to be seen how it will be interpreted by the Constitutional Court, the French supreme court.

In any case, whether it is a ‘right’ or ‘freedom’, the mere fact that it is guaranteed by the Constitution does not ensure its effectiveness: in France, the right to housing, the right to work and the right to strike have all been inscribed in the Constitution since 1946. Yet, they have all faced serious restrictions over the years. It is therefore important to continue to highlight the difficulties and practical hurdles that are still faced by women seeking access to abortion.

First, having abortion enshrined in the Constitution does not prevent doctors and nursing staff from exercising their right to the conscience clause. Indeed, doctors’ right to refuse or not to perform a medical act or to resort to an act which, although authorized by law, is contrary to their personal or professional convictions, is clearly established in the Public Health Code. Abortion is one of the three situations in which doctors are authorized to refuse treatment. This remains a danger for effective access to abortion. A striking example for this is Italy, where in five regions women barely have access to abortion, as 80% of the gynaecologists refuse to perform this medical act on the basis of their religious freedom.

In France, some voices have argued in favour of abolishing the conscience clause, however, the government and the right are inflexible on the issue – although such a change would be in line with ECtHR jurisprudence.

In two 2020 decisions, Grimmark v. Sweden (para. 26) and Steen v. Sweden (para. 21), the ECtHR emphasized that while individuals have the right to freedom of conscience and religion, states also have a positive obligation to ensure access to legal medical services, including abortions. In that regard, it considered that the Swedish authorities’ decision not to employ midwives who refused to take part in abortion was not in violation of the ECHR.

In addition, numerous abortions centres have been closed over the past few years, and access to abortion has become deeply unequal depending on where a person resides: because of these difficulties, between 3000 and 5000 women are forced each year to go abroad to seek an abortion, because the delay in France had expired.

The question of the cost associated with abortion remains a central issue, which has yet to be addressed. In France, when a medical practitioner prescribes a medical leave, there is usually a three-day waiting period before you receive your daily allowance from Social Security. In the absence of a specific paid leave for abortion, women have no choice but to request a classic medical leave and effectively loose three-days of pay. The law recently changed for miscarriage, for which the waiting period before receiving daily allowance has been suppressed. A similar solution could be envisioned for abortion.

Concluding Remarks

France’s decision to enshrine the freedom to have an abortion in its Constitution represents a decisive step forward for women’s rights and will be a useful shield to ensure this fundamental right is protected, no matter the political majority.

However, its practical effects are likely to remain limited, and it is necessary to remain vigilant and continue to fight to protect women, in France, in Europe and throughout the world.

It will also be interesting to see what consequences, if any, this constitutional recognition could have on the jurisprudence of the ECtHR. As the ECHR is an evolving legal instrument, States’ individual practice may serve as a supplementary tool of interpretation and France’s historic decision may contribute to a strengthening of the protection the ECtHR offers regarding a women’s right to have an abortion.