By Léa SAÏDI SADAOUI
Source : Retrieved from the website of the newspaper “Libération”, from the article : “Le droit à l’avortement en plusieurs dates et images symboliques”.
Roe v. Wade got a chokehold on French (and European) politics, and it.just.won’t.let.go.
When SCOTUS declared loud and proud that the right to abortion was not a fundamental right for women, the world shivered. Because all around the world, people remembered the disastrous and murderous times when pregnant individuals had to do/go through illegal abortions. According to a report (2009), unsafe abortions are the leading causes of maternal mortality and up to 68,000 women die annually because of it.
Yet, France’s affluent parliament figures braced themselves and unsheathed their shining swords. And in a great battle cry, they proclaimed the urgent need to constitutionalise the right to abortion. On the opposing field, leader of the opposition and newly re-elected president Emmanuel Macron got alarmed and jumped on board as well. Yes, without a doubt, abortion should be a fundamental right for women and all people able to procreate and bare child. And when he did so, leaders of the European Union joined the ship, chanting that the right to abortion should be written in the Charter of Fundamental rights of the European Union. After all, they didn’t want to miss out on all the fun.
This article aims to cover three main points :
How French law works;
What could be the aftermath(s) of the constitutionalisation of the right to abortion in French and European law;
Lastly, is the use of law as a last and almighty resort really efficient in our case ?
An introduction to the French law mecanic : Liberty, Equality, Fraternity.
Before getting into any kind of consequences (whether legal, social or economic), it is essential to first understand the mechanics of the French legal machine. Our starting point will be the nature of the state model : is France a federal or a unitary country ?
Unlike the United States, Germany or Switzerland who are federal states, the Hexagon is a unitary state. It can be defined as a political organisation in which most or all of the governing power resides in a centralised government. Therefore, the different counties of France only possess a regulatory autonomy (differing from the “regulatory power” of the Prime Minister). In other words, the centralised government does not share its governing power with lower state entities, in contrast to a federal state, in which a true “division of power” is operated.
Setting the differences aside, both a federal and a unitary state converge in one main point : sovereignty. Being such a large concept, many prominent figures have tried to discuss what it means. For example, Jean BODIN, who put on a pedestal the notion of sovereignty at the core of his political theory, defined it as : “The absolute and perpetual power of a commonwealth” as well as “The supreme power over citizens and subjects, unrestrained by law”. Inherently, sovereignty truly is the soul, the main component able to determine the State. Hence why it is mentioned within the very first articles of the Constitution (i.e : Article 3 of the French Constitution).
Just like the United States of America, France is a republican state, meaning that it is a form of government in which a state is ruled by representatives of the citizen body. Modern republics are founded on the idea that sovereignty rests with the people.
At the moment, the French state is ruled by the fifth Republic, sanctified by the Constitution of 4th October 1958. General Charles de Gaulle had a huge influence in the birth of this new regime, as he wished to reform France’s executive power and tune down the influence on the Parliament (which has, in the constitutional history, caused many issues). Hence why, by multiple reforms and bills, the V Republic is reckoned and beknowned as “presidentialist”. The epitome of such affirmation can be linked back to Macron’s sweet surname: Jupiter.
Simply speaking, the legal system of France is often explained to students through a self-explanatory scheme called “La pyramide de Kelsen” (Kelsen’s pyramid). The main idea is the following: the system works by levels, and anything under one level should refer to the level above it.
Constitutionality block : The Constitution and all the principles that laws must respect.
Conventionality block : All treaties, international conventions, European law.
Legality block : All laws and ordinances.
Regularity block : All decrees, circulars and orders.
It is therefore important to understand the place of the right to abortion in the constitutional and conventional blocks, the two highest and most important.
The aftermaths of the constitutionalisation of the right to abortion within the French Constitution.
Inherently, France is known for being the motherland of liberty and fundamental rights. Engraving the right to abortion within the most important legal text of the Nation would represent a great deal, state-wise as well as people-wise.
In an article, different French law professors wondered: “Is not the Constitution the supreme norm that allows a political regime to indicate the values and principles to which it gives special importance? Could it be that the alteration of the Constitution on such and such points, or the addition of a new right, brings nothing?”.
The constitutionalisation of the right to abortion has really divided the law sphere. While some argue that writing the right to abortion within the Constitution answers not to a french problem, but to an american one, others are highly preconising it.
The first argument is that the problem posed to the judges of the Supreme Court was indeed whether it was up to the federal government or the federal states to legislate on the issue of abortion. Thus, the direct consequence that can be drawn from this is that the American case (if not the threat) is fundamentally inapplicable to the French case for a reason all the more concrete as it is not natural: France is a unitary country, while the United States is a federal state.
And where the anti-constitutionalisation beast begins to doze off, it is of course the material realisation. What is more dangerous than taking fundamental rights for granted? What is more dangerous than establishing for the truth the existence of a status quo in terms of abortion rights? What is more dangerous than to keep your eyes on the national context without taking into account the external meanderings? While one party deplores the impertinence of such an advance (what a shame to want to constitutionalize a right already recognized by the jurisprudence of Constitutional Council) exclaiming that after all : “[it] would imply linking it to natural law, which is one of the foundations of human rights: it would mean that abortion would be a matter of human dignity. One of the first principles of human rights remains respect for human life”.
However, it is not just a question of consecrating the right to abortion as a fundamental right, but of consecrating its true autonomy. Autonomy does not mean that the right to abortion is “in a negative way, not infringing constitutional norms”, but a right not perpetually correlated with a situation of distress. More than autonomy, a true sovereignty of the right to abortion should be enshrined.
Finally, it isn’t about writing said right within the Constitution, but about engraving it.
The aftermaths of the constitutionalisation of the right to abortion within the Charter of fundamental rights.
The European Parliament expressed at a very early stage the idea of enshrining the right to abortion in the Charter of Fundamental Rights. However, several obstacles on the road render the proposal unrealistic.
The Charter of Fundamental Rights is a very important part of the European Union with respect to the protection of human rights. Yet, it applies to the entirety of the European Union, meaning that countries like Malta or Poland (who are beckoned to criminalize the right to abortion) are also obliged by it.
However, and although this idea makes good sense, its material execution seems improbable. In fact, to change the charter, the decision would need to be unanimous. So knowing where some countries stand on this particular issue, we need to start thinking about an alternative.
Consequently, the Charter is not the only bill which regulates fundamental rights. The Convention also exists and provides a more cohesive alternative. This is supported by a number of variables.
First of all, only the States Parties (High Contracting Parties) submit to it, which means that the whole Union is not concerned (unlike the Charter). Moreover, the legal force of the Convention (the process of recognition of rights constituting obligations for the States parties, as well as the submission of the latter and control of a dedicated jurisdictional body) is all the more an argument in favor of including the right to abortion in it.
Nevertheless, a question remains: what is the nature of the right to abortion? This issue is hard to "decide" so that the right to abortion affects all these fields. One might think that this is less a political right than a social or economic right, if a hierarchy were to be established.
Lastly, here is an extract from the most notorious lawyer in French history, Gisèle Halimi, in her closing argument for the Bobigny trial (1972) : “I will just say two more words: do we still have the right today in France, in a country which is said to be "civilised", to condemn women for having disposed of themselves or for having helped one of them to dispose of herself?”
Written by writer Léa SAÏDI SADAOUI
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