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President Emmanuel Macron on Friday submitted language for an amendment that would make France the first country to enshrine a right to abortion in its constitution.
Macron has declared on social media that by next year “the right of women to choose abortion will become irreversible.”
The push comes in direct response to the restriction of abortion rights in the United States.
Abortion in France has not been similarly under threat. The French public overwhelmingly supports abortion rights. Abortion is legal for any reason through the 14th week of pregnancy and fully covered by the country’s health insurance system.
But after the U.S. Supreme Court’s Dobbs ruling that overturned Roe v. Wade last year and allowed states to outlaw abortion, French women clamored to further protect their right.
In many countries, abortion is protected by law, not court decision
“The Dobbs case was very shocking in France,” said Mathilde Philip-Gay, a law professor at Jean Moulin Lyon 3 University. “A movement was born just after the case, and women asked Parliament to act and especially to change the constitution.” She noted that polls in the summer of 2022 showed that about 80 percent of the population supported abortion rights and a similar percentage was in favor of adding a right to abortion to the constitution.
“We don’t have the same problem as the U.S. It’s not for now. It’s for the future,” Philip-Gay said. “If you listen to Donald Trump campaign in 2018, you can tell that there was a strategy to reverse federal abortion rights. In the U.S., there was a long-term strategy; in France, we need a long-term strategy, too.”
Stéphanie Hennette Vauchez, a law professor at the University of Paris Nanterre, said there are other countries whose constitutions gesture toward reproductive autonomy or the right to make decisions regarding children, “but there’s no constitution that really expressly protects a right to abortion.”
“It also opens up really interesting theoretical questions about why have constitutions been so silent about human reproduction while, you know, all political communities depend existentially on reproduction,” she said. “If France or another country were to write the right to abortion in the constitution, it would really be a pioneering move.”
There are still hurdles to be cleared. The language submitted this week will be reviewed by the Council of State, France’s highest administrative court, which acts in an advisory capacity. The proposed amendment will then be put to a parliamentary vote, where it needs a simple majority. In the final step, it would need to secure the backing of three-fifths of lawmakers from both houses in a special congress convened at Versailles.
France moves to put abortion rights in constitution as U.S. curbs access
There have been disagreements over the precise wording, with lawmakers arguing over whether abortion should be a “right” or “freedom.”
Macron’s office confirmed Friday that he had submitted a draft reflecting the “freedom” language favored by the more conservative Senate. The proposed text, to be added to Article 34 of the constitution, says: “The law determines the conditions under which a woman’s freedom is exercised, which is guaranteed to her, to have recourse to an abortion.” That text could still be amended by lawmakers before they vote on it.
Feminist groups have argued that a “right” would be more robust than a “freedom” and would more clearly confer an obligation on the government to proe access. Some advocates are also concerned that the proposed wording gives too much power to the legislators of the day and might not prevent any rollback of protections.
The fine-tuning of language may seem like a luxury to abortion rights activists in the United States, who have been fighting bans and other steps to limit access in various states.
States where abortion is legal, banned or under threat
“Certainly we’re very far away from a constitutional amendment enshrining a woman’s right to choose abortion. In fact, America is moving in the other direction,” said Adam Winkler, a UCLA professor specializing in U.S. constitutional law.
And while it’s hard to change the constitution in France, it’s even harder in the United States, where three-fourths of the states need to agree on any amendment. The last constitutional amendment — preventing Congress from giving itself a pay raise before an election — was ratified in 1992, more than 200 years after it was passed by both houses of Congress.
“There are enough states that are profoundly antiabortion that they would be able to stop a constitutional amendment, currently,” Winkler said.
But it’s possible things could change — over time.
How abortion laws in the U.S. compare with those in other countries
“Dobbs dropped a bomb into U.S. politics and led to more mobilization from pro-choice voters,” Winkler said. “That could, ultimately, lead to a sufficient backlash that there is a push for a constitutional amendment. In the long run, abortion rights advocates are not going to want to rely on a Supreme Court decision to protect rights to an abortion, because, obviously, that can be overturned.”
