The Government wants to create a digital obstruction offense to sanction anti-abortion sites

The Minister of Families, Children and Women's Rights, Laurence Rossignol, announced on Tuesday, September 27 that she will present to parliamentarians an amendment on the "offense of obstructing abortion" in the bill Equality and citizenship. In his sights, opponents of the practice, particularly alternative websites to that of the Government as The rapporteur of the said text in the Senate, Françoise Gatel, assures us, however, that she will give an unfavorable opinion to this amendment.

Le Government a launched its official website on abortion on September 27, 2013. In January of the same year, the Minister of Women's Rights, Najat Vallaud-Belkacem called on pro-abortion associations to "launch a counter-offensive on the Internet" to win against anti-abortion sites before entering a SEO war on Google. Rather than a debate, a difficult fight that Laurence Rossignol now wants to finish with the help of the legislator.

Decriminalized by the Veil law in January 1975, that is to say exempted from punishment in certain cases, in this case the situation of distress, abortion - improperly called "abortion" since a pregnancy cannot really be interrupted, but stopped - has implicitly been legalized; it has become a right. Indeed, the condition of distress, which for a long time was in reality no longer required to abort, disappeared from the legislation with the law of August 4, 2014 which provides that in "Article L. 2212-1 [of the Public Health Code], the words: that his condition places in a situation of distress are replaced by the words: who does not want to continue a pregnancy " page (in French).

And already the explanatory memorandum to the 2001 bill on abortion declared that "the regulation of births is today a fundamental right of women". What was officially prohibited in hollow, the recourse to abortion outside a situation of distress, not being it any more in the facts, the practice is legalized. The Government, however, wants to go further by moving indirectly from penalizing abortion to that of anti-abortion information.

The misunderstood decriminalization was understood as a moral validation of abortion which would be good. By a strange twist of language, what was only decriminalized has become a right. From then on, legalization was only a matter of time, and the conception of good is such that its criticism is considered illegitimate but also to be penalized.

Decriminalization and legalization of abortion, penalization of its criticism?

Laurence Rossignol therefore wishes to make information on abortion as an alternative to that of the Government an offense, which would entail criminal sanctions, in this case two years in prison and a fine of 30 euros. Sites like ou, accused of offering data "deliberately deceiving Internet users by pretending to be official or neutral sites, and seeking to dissuade women from resorting to abortion", would thus be treated identically to litigants resorting to physical hindrance. 'abortion. This offense created in 1993 concerns since a law of August 4, 2014 any person who would try to prevent information about an abortion or to practice it, or by exerting, for example, moral and psychological pressure on the personnel of establishments authorized to carry out these operations, or by disrupting traffic to or in these establishments to dissuade having recourse to an abortion. It was already an amendment by Laurence Rossignol, then Senator for the Oise.

In fact, the Minister seems to consider that any opposition to his text, whatever the reasons, is motivated by a link with the refusal of the abortion.

The Government therefore plans to table an amendment on October 4, on the occasion of the examination by the Senate of the article of article 17 devoted to access to health data for young people, in the bill. Equality and citizenship. The rapporteur of the bill denounces the amendment as being a legislative rider, that is to say off topic, to which it will give an unfavorable opinion for this reason. An opposition to which the minister responds by denouncing supposed pressure from anti-abortions. In fact, the Minister seems to consider that any opposition to his text, whatever the reasons, is motivated by a link with the refusal of the abortion. Although Laurence Rossignol says he accepts that those who criticize abortion have the freedom to do so, she believes that they present false information and that justice must have an arsenal to sanction them.

In a column published in Le Figaro, Dominique Reynié, professor at Sciences Po, who says he is in favor of abortion, denounces as extremely serious the minister's desire to transform the call for reflection into an offense. For the academic, anyone who goes to one of the sites targeted by the minister and the journalist who had questioned him about his criminal intentions can see that these pages "do not conceal that abortion is a right".

Dominique Reynié explains that these sites “alert, because they think they have to do it, rightly or wrongly, against hasty decisions, against the pressures that men would exert on women in certain cases (; they also address the suffering and distress that women may experience after an abortion ( ”. The forum goes so far as to criticize the moral inconsistency of the Government which, while denouncing the said sites as lacking neutrality, "exonerates itself completely".

Other criticisms exposed in the article, the efforts of the government site to “discourage the search for alternative information” or even the “shocking lightness” with which a gynecologist informs about the “negative consequences of the abortion”. This choice of the minister to penalize alternative information makes Reynié say that "providing reasons not to have an abortion is therefore becoming a crime".

The technical debate instead of the ethical debate

Abortion seems taken for granted to the point that any debate would be impossible, for example on the conditions (therapeutic or not, time limit for abortion, time for reflection, etc.). Everything is happening as if the criticisms on the one hand relating to the nature of abortion, on the other hand about the prohibition of proposing alternative solutions, as Dominique Reynié is doing, were to be banned from public debate. Of course, the minister in charge of women's rights assures us that it is not a question of censoring freedom of thought, but it is a question of seriously restricting freedom of expression.

Everyone would be free to think what he wants, but not to express his thoughts if it competes with that of the Government on the issue of abortion, the expression then becoming a "lie" according to the minister. Consequently, not only is the alternative information judged to be penalized, but also the debate is impossible since the opponents are not considered worthy of being interlocutors, their word being denounced from the outset as false.

This qualification has for decades prevented any debate on the nature and conditions of abortion. According to Professor Reynié, a specialist in political transformations, “with regard to abortion, the call for reflection is now an opinion that this government considers urgent to silence. Far from the precious health issues, far from the legitimate rights of women, the project to create an offense of digital obstruction is only the expression of ideological radicalization. It is a new threat to the freedom to think. "

The major developments relating to abortion after 1975 were approached from a technical and administrative angle by evading the ethical debate.
In fact, the major evolutions relating to abortion after 1975 were approached from a technical and administrative angle by evading the ethical debate, at best by claiming to set limits to avoid abuses. So, the period of 10 weeks of pregnancy has been increased to 12 by the law of July 4, 2001 and opponents have been overlooked on the grounds that a woman's right to control over her body must be respected. An argument systematically used and which closes any debate. So the newsletter regarding the support by school staff of minors wishing to have an abortion without the knowledge of their parents, explaining the law.

Or, whilein Switzerland, a debate took place on the reimbursement of abortion, in France abortion acts are now fully reimbursed by Health Insurance since April 1, 2016 when number of drugs are delisted, a discrimination which would deserve at least a debate not necessarily on the abortion but on the difference of treatment. The Health law of January 26, 2016 eliminates the minimum 7-day reflection period before having an abortion, health centers can perform abortions by aspiration, and midwives are authorized to perform medical abortions. All only by considering that the debate is irrelevant or, if there is debate, by bringing in only supporters of abortion, which adds a strangeness to the polysemy of the term “debate”.

The abolition of the minimum period of reflection supposes such a rejection of the ethical debate that it is open to wonder whether we should not also speak of "minimum period of reflection", considering the absence of exhaustive information, whereas the Minister of Women's Rights ensures that the sites targeted by his amendment deceive women. Facilitating the absence of reflection, moreover by presenting only one possibility, is to deprive of informed consent. However, the times the Government raises an information problem, it is to denounce sites that offer alternative information while mentioning the rights offered by law to women considering abortion.

The authorized debate is therefore essentially technical.

The authorized debate is therefore essentially technical, in an allegedly ethical ancillary way when the Government claims to be taking a moral stand to contradict those who oppose abortion; and it is he who determines when the debate is ethical, and what is ethically acceptable, thus depriving of official legitimacy any debate which it eliminates. Even a simple technical debate, such as opposition to the rapporteur's amendment to the bill in the Senate, is therefore disqualified, and defined as ethically unacceptable, without the rapporteur's official motives being taken into account.

The debates then focus on the social organization of abortion, for example the medical deserts in the matter, or on the modalities of the practice, with a cold technicality opposing to any ethical questioning the argument of the right which is the abortion, demonetizing the moral dimension of law which, like any morality, is a place of debate. Opponents of abortion or its supporters reluctant to evolve without debate, to the criminalization of dissenting expressions, all are then considered to be outside the scope of the debate.

Faced with the high visibility of anti-abortion sites, the Government entered into a competition last January not to debate and convince of its reason, but make its official site acquire a better referencing on Google. Najat Vallaud-Belkacem had even encouraged to click on the Government site for the sole purpose of raising it to first place, a method that leaves ethical doubts. For two reasons, on the one hand that of dishonesty under the pretext of citizenship, on the other hand the limitation of the ethical debate to running for the sun on a search engine. This refusal of the debate has found its last avatar, the temptation to penalize the opponent.

Even if, despite the opposition of the Senate rapporteur to the introduction of Laurence Rossignol's amendment in the bill, the idea could be taken up in another bill where she would not be considered a rider legislative. However, as observed by Bertrand Mathieu, professor of public law at Paris 1, "Such a measure would have every chance of being judged unconstitutional", because, specifies the jurist, "it would clearly seem to me to exceed the control which the State can exert on the freedom of expression. We cannot reserve a specific treatment for abortion without having much broader consequences. In my opinion, for a website to fall within the scope of criminal law, on the specific question of abortion, it would, for example, have to express an incitement to obstruct the abortion, by calling for a occupation of centers that practice it. "

Penalization of exhaustive information, the primacy of abortion over women's rights

In fact of the right of women to abortion, it is an advantage for the supporters of the prohibition of the debate of a right to abortion supplanting the right of women to information. The possibility of obtaining exhaustive information removed, as well as the minimum period of reflection, the woman is not placed in a situation to know the ins and outs of her right. The refusal of alternative information is only one of the avatars of the prevalence of the right to abortion over the right of women to abortion.

Thus, when the deputies voted in November 2003 for an amendment tabled by deputy Garraud in the bill on serious crime, an amendment which created an offense of termination of pregnancy by "an awkwardness" or "a breach of a safety obligation", the Government of the time withdrew it from the bill. However, the Minister of Justice, Dominique Perben, had so far been in favor of this amendment recognizing the right of women victims of accidental abortion to obtain criminal justice recognition: if this amendment had been retained, a driver drunk for whose fault a pregnant woman had lost the unborn child would have incurred a year in prison and a fine of 15.

The media pressure exerted by the left opposition of the time, part of the right, the pro-abortion associations made Dominique Perben bend. Recognizing the loss suffered by the pregnant woman, it was for the opponents of the amendment to recognize a status for the embryo and to open a door on the possibility of banning abortion. A capillotracted reasoning in the state of things and incoherent since the voluntary termination of pregnancy without the consent of the mother was penalized, without shocking.

However, it was a question of filling a legal void, an argument which parliamentarians and the Government are so fond of when they want to legalize, penalize, criminalize, especially in bioethics, there in the sense of legalization. If the termination of pregnancy is intentionally caused by a third party without the consent of the pregnant woman, Article 223-10 of the Penal Code provides for 5 years' imprisonment and a fine of 75 euros. But nothing was planned for the cases raised by the Garraud amendment. The outcry against this recognition by the State of the tragedy experienced by the women victims of these accidents made speak the deputy Garraud of "intellectual terrorism of the left and the extreme left".

We see the distinction made by the philosopher and sociologist Raymond Aron between real power and institutional power
We saw the distinction made by the philosopher and sociologist Raymond Aron between real power and institutional power, the first being able to overlap the second, to dispose of it officially, but being constituted by the relations between different actors, political, media, social. This real power can prevail over institutional power, and its pressure forced the then Minister of Justice to give in. When fifty law professors petitioned President Chirac in support of the Garraud amendment, the daily Libération ironically titled " Law teachers in pro-life crusaders“, Implicitly reducing any criticism, even from legal experts, to a matter of religious belief.

If the story of the Rossignol amendment were to end as the rapporteur of the bill wishes Equality and citizenship, the Government would always have the possibility of entering the arena of debate. What he always refused to do, hiding behind the mask of virtue too noble to confront those who, by definition from above, would be dishonest.

In the debate on vaccination, the Minister of Health, Marisol Touraine, had he not chosen to discredit Professor Henri Joyeux by describing him as "a doctor who spoke out against abortion", suggesting by a reductio ad hominem, that therefore there was no need to discuss with him even on subjects unrelated to abortion? Since this intellectual shortcut on the subject vaccine question was made to prevent any debate as to who was right or wrong, it should come as no surprise that, moral offense among moral offenses, the expression dissenting on abortion be threatened with being reclassified as a criminal offense.

Hans-Søren Dag

Photo credit: By ALRPMN - Own work, CC BY-SA 3.0

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