Constitutionalisation of abortion in France: a high-risk symbol

The conscience clause specific to abortion is questioned 

The conscience clause specific to abortion was created by the 1975 Veil Act, which decriminalised abortion. It stipulates that "a doctor or midwife is never obliged to carry out a voluntary interruption of pregnancy" and that "no midwife, nurse or medical auxiliary whatsoever is obliged to assist in an interruption of pregnancy" (Public Health Code). This protection allows healthcare workers to exercise their freedom to withdraw from an act that offends their conscience, without exposing themselves to sanctions. By including the freedom to have an abortion in the Constitution, members of parliament are symbolically setting up a dangerous competition of freedoms that could undermine the conscience clause of healthcare workers. On the day of the vote in Congress, MP Mathilde Panot (LFI) and Senator Mélanie Vogel (Les Écologistes) were already planning to call for "the repeal of the double conscience clause". (IVG franceinfo, 04/03/2024).   

While for some feminists, such as Anne-Cécile Mailfert, President of the “Fondation des femmes”, this vote is "a powerful symbol" that will not "change the interpretation of the law", it will unable some people to influence political power in order to promote access to abortion at a time when, as we know, there are fewer and fewer medical practitioners willing to perform or participate in an abortion. 

Guaranteed freedom of abortion versus the right to life? 

As the result of a compromise between the two chambers, the wording chosen means that "no law can explicitly state that a woman does not have the freedom to have an abortion", according to Laureline Fontaine, professor of constitutional law at the Sorbonne Nouvelle. (France Bleu, 26/01/2024) In these circumstances, it is easy to understand the concern of some members of parliament, such as non-attached senator Stéphane Ravier, who believes that this inclusion in the Constitution paves the way for "recognition by the constitutional court of abortion until the end of pregnancy, abortion on the basis of the child's sex or on eugenic grounds". He added that "anyone wishing to support unborn life could be penalised". While it is too early to know how the judge will interpret this "guaranteed freedom" to abort, we can foresee an additional difficulty in claiming a right to life for these unborn children. 

The sociological context in which this constitutionalisation of abortion is taking place is troubling. The French National Institute for Demographic Studies (INED) has registered a record of 232,000 abortions in France in 2022. At the same time, the birth rate continues to fall, according to the same institute, bringing the ratio down from 1 abortion for every 4 births in 2017 to 1 abortion for every 3 births in 2022. Will the ideological implications of the legal "consecration" of abortion make this ratio even worse? 

What about prevention? 

At a time when 75% of women who have had an abortion say they were forced to do so by social or economic constraints (according to the Guttmacher Institute), prevention is more urgent than ever. Women's rights certainly depend on better consideration of their needs. Yet it is the least advantaged socio-professional categories who have the most recourse to abortion. What will be done to help these women, who are forced to have abortions as society considers that abortion is a freedom that must be guaranteed? Furthermore, what will happen to the information given to women about the risks inherent in this act? 

It is common to distinguish between so-called "unsafe" abortions carried out in certain countries where abortion is not organized by the public authorities and which should be prevented, and "safe" abortions that are protected by law. France decriminalised abortion in 1975 and does everything it can to make it easier to get an abortion. Yet these measures do not make abortion any less traumatic for women. The physical, psychological and social consequences on their health show that there is an urgent need to prevent this act. According to a 2011 study on the links between abortion and mental health, women who have had an abortion are 81% more likely to have mental health problems than women who have not had an abortion. This study also shows the link between abortion and an increased risk of drug or alcohol addiction and suicidal thoughts. 

Finally, the question arises as to whether it will still be possible to offer alternatives to abortion if it is described as a "guaranteed freedom". 

For further information, see the EIB dossier "Psychological consequences of abortion".