That hasn’t taken away from the sense that the vote is one for the history books.
Parisians gathered to watch the proceedings live on giant television screens at Le Parvis des Droits de l’Homme — or “Human Rights Square” — in central Paris, with the Eiffel Tower looming dramatically over the scene.
While other countries have inferred abortion rights protections from their constitutions, as the U.S. Supreme Court did in Roe v. Wade, France will be the first to explicitly codify in its constitution that abortion rights are protected. France is not interpreting its constitution; it is changing its constitution.
A reaction to the United States
Activists and politicians have been transparent that this is a response to what has been happening in the United States since the Supreme Court overturned Roe in 2022 and determined that the right to abortion has no constitutional stature — it could no longer be inferred from constitutional privacy protections.
France has moved in the opposite direction, with its politicians saying that abortion is indeed a matter of constitutional relevance. And more than that: The right to an abortion should be a “guaranteed freedom.”
“It’s interesting to see French politicians saying, ‘We’re going to take the constitution into our own hands and away from the courts, or at least limit how much discretion the courts are going to have in this area,” said Mary Ruth Ziegler, a law professor at the University of California at Davis and the author of “Roe: The History of a National Obsession.”
“U.S. activists — don’t give up the fight,” said Lola Schulmann, an advocacy officer with Amnesty International in Paris and an organizer of Monday’s gathering. “What is happening in France is for you and all women fighting for abortion rights in the world.”
What would it take to change the U.S. Constitution, too?
In both the United States and France, polls show that a majority of people broadly support abortion rights. But abortion is more divisive in the United States than in France. That may be in part because France is proud of its commitment to secularism. It may also be because abortion in France has long been framed as a public health issue, rather than a privacy issue, said Stéphanie Hennette-Vauchez, a professor of public law at the University of Paris-Nanterre.
Changing the U.S. Constitution would be harder — it requires not only two-thirds majority support in both houses of Congress, but also ratification by at least 38 of 50 state legislatures.
“The obstacles are more significant,” Ziegler said.
She noted that one of the most “notorious examples” of how hard it is to change the U.S. Constitution was the failure to ratify the Equal Rights Amendment, which declared that sex discrimination was unconstitutional in the United States. “I think most people would think that’s less controversial than an abortion amendment would be,” Ziegler said.
Since the U.S. Constitution was ratified in the 1780s, it has only been amended 27 times, including the Bill of Rights, the first 10 amendments. “That sort of perspective gives you a sense of just how difficult it is” to change it, said Melissa Murray, a law professor at New York University. “It’s even more difficult today to come up with a supermajority given the political divisions.” By contrast, the current constitution of France, adopted in 1958, has been amended 24 times.
State constitutions in the United States can be amended more easily than the U.S. Constitution. And so, “for people supporting women’s rights, the strategy has been to go incrementally through the states, and hope to build eventually towards something nationally,” Ziegler said.
Since the end of Roe, six states — California, Kansas, Kentucky, Michigan, Vermont and Ohio — have approved abortion-related constitutional amendments. At least 13 additional states are trying to get abortion amendments on their ballots this year.
The future of abortion rights in France
In France, nothing will change immediately as a result of the new constitutional amendment.
Abortion in France was decriminalized in 1975. It is legal for any reason through the 14th week of pregnancy. The amendment doesn’t change the status quo or the content of legislation as it stands today. For instance, it is not suddenly legal for any reason to terminate a pregnancy after the 15th week of pregnancy. The French National Assembly and the Senate would need to pass legislation if they wanted to make that kind of change.
“It’s up to Parliament to regulate in this field,” Hennette-Vauchez said. But, going forward, “Parliament cannot do exactly what they want. They need to legislate in a particular direction. And that direction is one that would preserve the idea of a guaranteed freedom.”
She hypothesized a situation in which a new government decided that abortion was no longer fully covered by the country’s health insurance system. That kind of change probably wouldn’t fly under the new amendment.
But she noted that judicial interpretation is difficult to predict. “In that sense, the word ‘guarantee’ is very important, but it’s also relatively undefined.”
France’s constitutional amendment doesn’t safeguard abortion rights in France for eternity. Recognizing a right doesn’t eliminate all of the questions about that right. There will still be judicial interpretation over what a “guaranteed freedom” means.
And as lawmakers this year have shown, constitutions can be changed.
