Emmanuel Macron announced on Wednesday that he wants to include in the Constitution the “freedom” of women to seek abortion. This promise behind the symbol would not change anything, states constitutionalist Bertrand Mathieu.
Everything plays in the delicacy of the chosen words. This Wednesday, March 8, Emmanuel Macron announced that he wants to “enscribe the freedom to seek voluntary abortion (IVG)” in the Constitution. “Freedom”… The resolution is far from being trivial, as it renounces the concept of “right” demanded by a part of the opposition. It affirms, on the other hand, loyalty to the proposal of the Senate, which on February 1, by a vote of 166 to 152, voted in favor of the entry of “liberty of women” in the Constitution to refer to IVG. Which leads some feminists to say, albeit happily, that the victory is half-hearted. He is: By abandoning the word “right” in favor of “freedom,” what does this change in practice? Everything according to constitutionalist Bertrand Mathieu. “And that’s why there is such a debate.”
In the video “I had an abortion myself”, Deputy Clementine Oten testifies about her abortion.
Collision Rights
To see more clearly in this legal jargon, we need to go back to the basics. As explained Figaro According to Guillaume Drago, professor of public law at the University of Paris II Panthéon-Assas, “liberty is the call for personal autonomy, such as freedom to come and go, or collective autonomy, such as freedom of the press. The right, meanwhile, “is asserted against state power, like the right to education.” Then the state must intervene to implement and guarantee it for each individual. In the case of abortion, fearing that the situation would one day degenerate in France (as it has in the US), some parliamentarians (notably the environmentalist Melanie Vogel and the rebel Mathilde Panon) preferred to take the lead. asking to include the “right” to abortion in 1958
Why do they cling to this word “correct”? Because, according to them, the term “freedom” is not enough and that “registration of the right to abortion in the Constitution will strengthen women’s rights”, assures Bertrand Mathieu. And for good reasons. “We would end up with the right of demand, that is, the state would be obliged to make all efforts to ensure that right. This is the principle that we find in connection with the right to education, health, right to work,” adds the constitutional expert. And that is exactly what the aforementioned parliamentarians and feminist associations are campaigning for. that everything should be done so that women can have an abortion in good conditions, provide care…
Except it’s not that simple. On the one hand, reminds Bertrand Mathieu, “the law, as already defined by the Constitutional Council, says that a woman cannot be forced to continue a pregnancy that she considers incapable. This is called personal freedom. And this by virtue of Article 4 of the Declaration of the Rights of Man and Citizen, which states that “freedom consists in being able to do what does not harm others” (freedom of action), and Article 2, which refers to: personal freedom of each individual.
On the other hand, “there is freedom of conscience, to which the doctor responds, and which responds to the same logic; (if he does not wish to perform a medical act contrary to his personal, professional or ethical convictions, he is not obliged to do so for the sake of the freedom described in Article 2, Editor’s Note). At the same time, the protection of the embryo also works. “Concretely, the Constitutional Council says that the protection of the embryo derives from the principle of human dignity. If we want to simply imagine, on one side of the line is the woman’s freedom (therefore, resorting to artificial abortion), and on the other side is the protection of the embryo,” warns the constitutional expert. “And the further the pregnancy progresses, the more freedom is reduced in favor of protecting the embryo. It is a balance of eternal evolution. Moreover, the duration during which a woman can apply for an abortion has changed.
Including abortion as a “right” in the Constitution would certainly strengthen women’s rights, but weaken other rights and freedoms.
Bertrand Mathieu, constitutional scholar
And therefore, registering abortion as a “right” in the Constitution would contradict other rights and freedoms, in this case, the freedom of conscience of doctors and health workers; but also the protection of the embryo.
Always the time FigaroGuillaume Drago gives an example. if abortion were a right, “a woman seven months pregnant could challenge the refusal of an abortion by reference to constitutional law and then to the QPC (The primary question of constitutionality, NDRL) would be presented to challenge the law setting the deadline for applying for an abortion, he imagines. However, the expert emphasizes that the constitutional right is the highest in the hierarchy of norms. Asserting an absolute right without elements of balance carries an inherent danger.
A symbol, but not a big change
Why, in this case, not register abortion as a “right”, framing it and informing the legal terms of abortion that exist in the law today? “Simply because that is the role of the law, not the Constitution,” Bertrand Mathieu interrupted.
If the “right” to abortion in the Constitution would turn it upside down and cause many legal problems, then registering it as a “freedom”, on the other hand, does not change anything a priori. It is only a strong symbol. “Emmanuel Macron knows it well, it’s a political coup,” sums up Bertrand Mathieu. “An act of communication, the purpose of which is to write something very agreeable in the Constitution, because no one questions the very principle of freedom, and as we go further, we cannot say that women’s rights are strengthened or weakened.”
The following:
And now ? The President of the Republic assured him that he will bring this constitutional bill “in the coming months”. Instead of a referendum (a politically delicate procedure because it can debate a topic on which there is still consensus), he must submit the text to Congress, that is, a session of the Assembly and Senate, where he must obtain a three-fifths vote to pass the text. for:
We have since learned that this constitutional amendment on abortion may slip into the so-called “general” constitutional review. In any case, it is the plan of the head of state, if we are to believe The world . Which should give rise to some fears, as in the case of Laurence Rossignol. “Emmanuel Macron should propose a constitutional bill dedicated exclusively to abortion. To include it among several measures of different nature and impact is to risk not getting a three-fifths majority, raises the senator of Oise, reached by phone. For example, I can very well agree with including abortion in the Constitution, but not with anything else. And it is precisely for this reason that this constitutional amendment must be specific, otherwise the project is clouded.
In the video: “I don’t care what the Bible says.” This American journalist’s video about abortion is circulating in the United States.
Source: Le Figaro
