What would change if the right to abortion were enshrined in the Constitution?

What if the right to abortion entered the Constitution? This is what many MPs and political leaders want. The leader of LREM deputies, Aurore Bergé, announced on Saturday the tabling of a bill to include “respect for abortion in our Constitution”. The parliamentary intergroup of the Nupes also proposedthis Monday, to “all deputies outside RN to co-sign a constitutional bill aimed at protecting the fundamental right of voluntary termination of pregnancy”.

A request that comes as since Friday, June 24, each American state is now free to judge legal or illegal abortion. Following this decision of the Supreme Court of the United States, several States have already made it illegal, even in cases of incest or rape. “This also calls for us to take steps in France so that we cannot have any reversals tomorrow that could exist,” she justified. Today, this right depends on the Veil law, several articles of which have been modified since its entry into force in 1975.

An amendment and a constitutional bill have already been tabled to this effect, in July 2018 and July 2019 by left-wing deputies. At the time, 145 deputies voted against, including 100 elected LREM. Among them, Gabriel Attal, current Minister of the Budget, or Olivia Grégoire, the government spokesperson. “This protection requires a constant fight in our public policies and in our legislation, as well as careful monitoring of the respect of these rights, and not by their inscription in the Constitution, which is neither necessary nor useful” , reacted at the time Yaël Braun-Pivet, favorite to occupy the post of President of the Assembly.

But what would it change to include this right to abortion in the Constitution? 20 minutes answers you.

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“A law is easier to modify. It is enough that the majority of the deputies of the Assembly vote in this direction, ”explains Xavier Vandendriessche, professor of constitutional law at the University of Lille. In broad outline, that is to say that if more than half of the deputies decide to modify the Veil law and reconsider the right to abortion, it is possible.

For the Constitution, it is more complicated, it is necessary to respect the procedure indicated in article 89. “It is necessary that all the powers are in agreement on this modification”, continues the specialist. The Assembly and the Senate must approve the same text, word for word. Then, since it is a bill that emanates in this case from the deputies, a referendum must be held at the request of the President of the Republic.

A question then arises: what should be included in this Constitution? “The principle may be reduced to nothing if the contours of abortion are not specified”, explains Xavier Vandendriessche. By this, he means, for example, the legal period to be able to perform an abortion, or reimbursement by Social Security. “If this is not specified, it suffices to modify the Veil law, to reduce the period to 1 week of pregnancy, without it being unconstitutional. »

For solicited lawyers, there is no risk

But as his colleague Michel Lascombe, associate professor of public and constitutional law, also points out, the foundations can be found in various already existing texts. This would prevent an easy return to the Veil law. “The right to abortion is already more or less protected by the freedom to dispose of one’s body and equality between men and women in the Declaration of the Rights of Man and of the Citizen and the Constitution”, explains Michel Lascombe.

The latter also believes that there is little chance that the situation of the United States will occur in France, because of the very different functioning of the institutions. Across the Atlantic, it was enough for five of the nine judges of the Supreme Court to vote in favor of revoking access to abortion. These nine sages are appointed for life by the president and confirmed by the upper house of Congress. Three of them were placed there by Donald Trump.

However in France, if to infringe a right enshrined in the Constitution, the path is long, it is the same to add or modify an article. The procedure is the same, and for the moment, no modification proposal has succeeded in the history of the Fifth Republic. According to Michel Lascombe, including the right to abortion in the Constitution is in this respect “a false good idea”. The lawyer apprehends the referendum phase: “We are going to end up with a terrible, extremely difficult campaign, in which the supporters of the NO will say anything and everything. “A danger that will not necessarily want to run a political staff already little in court with public opinion.