Last month, France captured the attention of the world when it amended its constitution to explicitly include a right to abortion. (Technically, France was not the first country to do so as, before it collapsed, Yugoslavia constitutionally protected abortion.) Unsurprisingly, the move is considered highly controversial. Those in support of the amendment argue that as the procedure of abortion becomes more common – estimates are that somewhere between 25 to 30 percent of all pregnancies worldwide end in abortion – France must protect its citizens’ rights both now and in the future. Individuals that oppose the amendment, generally, fall into two categories: those that find it legally unnecessary and those that object to abortion all together.
France is not the only country to advance reproductive rights through legal mechanisms. According to the Council on Foreign Relations, in the last thirty years, sixty countries have either passed new laws or amended existing codes to expand access to abortion. While the majority of European states legalised abortion decades ago, in the past six years, three of the last holdouts, Ireland, San Marino and Malta, permitted the procedure for the first time. At the time of writing, only twenty-one countries worldwide do not legally allow abortion.
Despite reform worldwide, within the same period, four countries have further restricted access to abortion and other reproduction services: El Salvador, Nicaragua, Poland, and, notoriously, the United States of America (US). The US Supreme Court garnered international attention when it published an opinion (Dobbs vs Jackson Women’s Health Organization (2022)) that declared that the US Constitution does not protect the right to abortion, allowing state legislatures to regulate abortion access and thereby overturning the decades-old precedent established by Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).
Immediately, several world leaders expressed concern regarding the US Supreme Court’s decision. Particularly prominent were those who commented that the Dobbs opinion indicated that the law is not as permanent as it is often perceived. Spain’s Prime Minister, Pedro Sanchez, for example, said the Dobbs decision forced politicians to come to an unfortunate reality: any social progress and individual rights instituted by legal means can just as easily be undone by legal means.
Emma Bonino, the former Foreign Minister of Italy, appeared similarly disheartened when she commented that she feared that Italy was at risk of “losing achievements that seemed permanent.” Sanchez and Bonino’s comments have particular weight when considered alongside that of former British Prime Minister Boris Johnson. While noting that the opinion of the US Supreme Court did not apply outside that jurisdiction, Johnson emphasised that the Dobbs decision greatly influenced the legal thinking of many around the world.
Johnson has already been proven correct. Grégor Puppinck, a far-right leader known for his anti-abortion efforts, saw the Dobbs decision as a positive development, viewing it as establishing a precedent for the elimination of abortion rights by legal means. Puppinck is not alone in his opinion as other far-right activists also see the Dobbs opinion as a guide for recriminalising abortion across Europe.
Noting the apparent rise in support for the far-right's anti-abortion movement, France’s government moved to make abortion a constitutionally protected right in direct response to the Dobbs decision. French Justice Minister Eric Dupond-Moretti said as much, arguing that through the Dobbs opinion, the US Supreme Court showed that “no democracy, not even the largest of them all, is immune” from legal changes that strip citizens of their “fundamental rights.” Citing the recent rise of far-right governments in Poland and Hungary, French Prime Minister Gabriel Attal had comparable sentiments, explaining his fear that, should a far-right government come to power in France, French citizens would be stripped of certain core rights, including that to abortion.
By and large, French politicians seemed to have agreed with Dupond-Moretti and Attal. After the French Senate and National Assembly voted to pass the amendment as separate legislative bodies, both houses came together as the French Parliament to jointly adopt the change and officially amended the 1958 Constitution to ensure abortion was a “guaranteed freedom” in a 780-72 vote, with 50 abstentions.
After the vote, those that disapproved of the change said they did so because they feel the amendment is unnecessary. These legislators are not alone in their opinion. The French Constitutional Council also does not believe the amendment is required to ensure that abortion is legally protected in France. According to the Council, not only is the right to abortion considered non-controversial in France, but abortion is also already protected through legislation and the French Constitution (on the theory the liberty protection in the Declaration of the Rights of Man and the Citizen (1789) extends to abortion). Notably, the legislation (originally passed in 1975) has been amended several times, always to expand access. The law was most recently amended in March 2022 to extend the legal timeline of abortion (pregnant women could now get an abortion for up to 14 weeks) and to permit medical abortion via telemedicine.
Given the strong case made by the French Constitutional Council, one question must be asked: why do French political leaders feel their Constitution can more strongly protect the right to abortion than its long-standing legislation? It is understandable that Attal and other French politicians are nervous about the growing support for the far-right and their anti-abortion cause – it may even be prudent to exercise caution and institutionalise rights conservatives might take away if they come to power.
However, the method by which France went about protecting abortion is an interesting one. Constitutions are not immune from change. In fact, it can be a rather simple process to amend a constitution. In France, for example, for a constitutional amendment to be adopted, it must be proposed by the President of the Republic or a Member of Parliament, then passed by both houses of the French Parliament (the Senate and the National Assembly) within a given time period. While such change may not be immediate, the French Constitution is by no means immutable. In other words, if the far-right came to power in the way Attal fears, the French Constitution cannot ensure the right to abortion because, even with this latest amendment, another amendment could remove reproductive rights from the French legal code.
The reaction from Sanchez and Bonino discussed above suggests that French policymakers may not be alone in thinking that mere legislation is not enough to withstand the rise of far-right anti-abortion activism. While it appears that the issue of reproductive rights is not as politically and socially settled in Spain or Italy as it is in France, access to abortion is still legally protected in both countries by medical codes, civil codes, and/or general abortion laws. Such protections may not appear to have the same weight as constitutional rights, however, there is little reason they should be considered weaker than a constitution similarly susceptible to change. Rather, if worded correctly, legislation can, with time, protect rights with as much strength as constitutions are currently believed to do.
In some countries where constitutional amendment may not be an option, such strong legislation will be essential to protect reproductive rights. In Great Britain, for example, there is no single constitutional document which can be amended. Consequently, legislation is the only mechanism that can ensure a right to abortion. In other countries, such as the US, the constitution can be difficult to amend. There, especially for controversial issues like abortion, legislation may be the only alternative as there is little chance of such rights being enshrined as a constitutional right.
Abortion is a highly contentious issue, especially in politics. Upon voicing support for France’s newest constitutional amendment, French President Emmanuel Macron was accused of using abortion as a way of achieving political gain. However, as the increase in abortion legislation worldwide has shown, access to abortion is increasingly viewed as a fundamental right by individuals across the political spectrum. This is not to say that the rise of the far-right should not be taken seriously as a threat to reproductive rights, it should be. Rather, it must seriously be considered if constitutions, as impermanent as they can be, are the proper mechanism by which to defend abortion or if legislation is more than sufficient for the task.
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