Include abortion in the constitution, an above-ground idea [OPINION]

After the decision of the Supreme Court of the United States to restore to the federal states the freedom to legislate on abortion (cf. LSDJ n ° 1622), a wave of proposals aiming to “concrete” abortion is sweeping through Europe.

In France, one of the countries where abortion is the most practiced, it was Aurore Bergé, the president of the Renaissance group (ex. LREM), who revived this idea. During the previous mandate, the LREM group had not supported similar proposals emanating from the left (socialists, communists, rebellious). And now, under the influence of a decision taken in Washington, the majority operates a reversal immediately supported by the government, Elisabeth Borne, new Prime Minister, in the lead: she declared that the government would support this proposal “with force”. Unsurprisingly, NUPES for once agrees with the Prime Minister…

However, Aurore Bergé's proposal aroused little reaction in the French political class, with the notable exception of François Bayrou, president of the Modem, an ally of the presidential majority: "Frankly, in the state the country is in, with all the questions we have before us, is it good and useful to do that ? While no political party calls into question the Veil law and what it has become through the different developments, I am not in favor of tracing American political life. » (Le Monde, 26/06/2022) “Beware of drive laws” warned the President of the Senate, Gérard Larcher.

Amending the Constitution, a fortiori under the influence of a foreign Constitutional Court, is “a major and serious act, from the legal point of view and even more so, from the point of view of national cohesion”, warns Guillaume Drago, professor of constitutional law. “We need legal stability and clear and indisputable principles which always lead to the maintenance of the Constitution and to the happiness of all, as stated in the Declaration of the Rights of Man and of the Citizen of August 26, 1789” (Aleteia, 2/07/22). "This reform was imagined in the emotion of the judgment of the Supreme Court with a symbolic dimension without worrying about its legal consequences" confirms Anne Levade, professor of public law (Le Figaro, 30/06/2022). "Inscribing abortion in the Constitution is useless and senseless" underlines the jurist Anne-Marie Le Pourhiet: "We are a country with a legicentrist and republican tradition where it is the parliament, representative of the nation, which makes the law and not the judge. » (Marianne (27/06/2022). It should be noted in this regard that, on June 24, the American Supreme Court precisely returned to the States a right that it had arrogated to itself in the Roe v Wade judgment of 1973...

Moreover, in the Veil law, abortion is recognized as an exception, and not as a right. “The first article of the part relating to the voluntary termination of pregnancy (art. L 2211-1) reproduces article 16 of the Civil Code, under the terms of which “the law ensures the primacy of the person, prohibits any attack on the dignity of the latter and guarantees respect for the human being from the beginning of his life”. And the following article (art. L 2211-2) specifies that “this principle can only be infringed in case of necessity.” Abortion is thus explicitly presented as an attack on the principle of respect for human beings from the beginning of their lives. It is an exceptional text, and not a right", underlines the jurist Aude Mirkovic (Aleteia, 03/07/2022).

For the Constitution to be amended, there would have to be (according to article 89 of the Constitution of October 4, 1958) a consensus within the government and the two assemblies (National Assembly and Senate). The opposition of the President of the Republic, the Prime Minister or one of the two assemblies would suffice to prevent the revision. Concretely, whether it is a bill (if the initiative came from the government) or a private member's bill (from Parliament), the revision of the Constitution would require that the National Assembly and the Senate adopt it in the same terms (unlike other laws, where a consensus can emerge from a joint committee, failing which the last word goes to the National Assembly), then it is validated, either by referendum ( which implies a campaign and a debate having repercussions on the whole of society), or by a vote by a majority of 3/5ths of parliamentarians, deputies and senators, meeting in Congress at Versailles. A difficult objective to achieve, not to say out of season, given the current composition of the Assembly and the Senate.

Aurore Bergé's proposal therefore seems to be symbolic, even gesticulatory. However, it is not trivial: "It's an additional leap forward towards ever more trivialization of abortion to the detriment of a real examination of the causes, conditions and consequences of abortion" notes Alliance Vita.

Philip Oswald

This article is published from Selection of the day.