Abortion in the Constitution: what are the differences between the notions of "right" and "freedom"?

Ophélie Artaud 5:15 p.m., February 02, 2023

DECRYPTION

A historic breakthrough.

This Wednesday, the Senate voted in first reading on a text to include in the Constitution the "freedom" of women to resort to abortion, by 166 votes against 152. Concretely, the senators wish to register that "the law determines the conditions in which a woman's freedom to terminate her pregnancy is exercised".

A constitutional bill first brought by the left to the National Assembly Last November, the deputies had voted in favor of the inclusion of abortion in the Constitution, but the wording was not the same. 

The supporters of the text, in particular the president of the LFI group in the Assembly Mathilde Panot, wanted to create a new article in the Constitution, 66-2, in which it would have been written that "the law guarantees the effectiveness and equal access to the right to voluntary termination of pregnancy".

A text which had been refused by the senators, who proposed to supplement article 34, by changing the formula.

The notion of "freedom" therefore takes precedence over that of "right".

But what does this actually change?

What is the difference between the concepts of "right" and "freedom"?

Among the senators opposed to the formulation of the National Assembly, the Republican Philippe Bas, former collaborator of Simone Veil.

To justify the change in wording, he explained that his “counter-proposal aims to guarantee the balance of the Veil law […]. It consolidates a freedom recognized by the Constitutional Council […]. It provides that the legislator determines the conditions and therefore the limits. There is no absolute right. There is a freedom that can be enshrined in the Constitution but on the condition that there is a reconciliation between the right of the pregnant woman to terminate to her pregnancy and the protection of the unborn child after a certain period", details Public Senate.

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Because "right" and "freedom" are two very different concepts.

"Freedom is a 'capacity to do', while the law is almost an obligation incumbent on the interlocutor", explains Anne-Charlène Bezzina, lecturer in public law and constitutionalist, at Europe 1. "Freedom is an 'ability to' is a subjective notion, it's 'I can have recourse to.' For example, with freedom of expression, if I want to speak or publish, I do so, but I don't expect anything in return. Whereas the 'subjective right to' gives the impression of a claim: the State must guarantee it. This is the case with the right to strike, for example."

In other words, "freedom is the idea of ​​telling oneself that the woman can have recourse, if she wishes, to an interruption of pregnancy, whereas the law gives a little the feeling that this interruption is 'by right'. However, Abortion is more regulated than a 'right'. It is not something that is opposable to the State".

For the constitutionalist, "it is perhaps more accurate to speak of freedom, in my opinion, because that leaves the idea of ​​the 'faculty of', which is that of the woman, to have free access to her body."

A symbolic inscription

Because bringing abortion into the Constitution, whether as a "right" or "freedom", does not prevent new laws from enriching it.

"In a fundamental right like this, where you have to keep the doctor's reserve, where you have gynecological issues that have to come into play, you can't regulate everything in the Constitution. So it was obvious: the The only thing we want to constitutionalize is the idea that this right exists, it's the idea that women can have this freedom of access to abortion. to the law", underlines Anne-Charlène Bezzina to Europe 1.

But including abortion in the Constitution remains symbolic.

"By constitutionalizing, we will consecrate this access to abortion and never return to it, but if one day a government hostile to abortion takes power, it could no longer pass any law that guarantees this right. The Constitution and the law work together: the first guarantees something while the second comes to fix the technical modalities", continues the lecturer.

"We even see it in Hungary and Poland: the Constitutional Courts are muzzled, so in these cases, constitutionalization unfortunately cannot do everything."

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A symbol all the same major "because it shows that the country chooses to pass a right to posterity. This constitutionalization has a symbolic, but also historical significance, and it shows that the fight of women continues, including in the text the most fundamental of a State", concludes Anne-Charlène Bezzina.

From now on, the text will return to the National Assembly, where it must again be voted on.

It could then be put to a referendum, unless the government takes up the issue and makes it a bill.