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FRANCE EXPLAINED

Can France’s Constitution be changed to add the right to abortion?

In the wake of the American Supreme Court's decision to end abortion rights for women in the US, French MPs have voted to enshrine in France's Constitution the right to terminate a pregnancy - so how easy is it to amend the Constitution in France?

Can France's Constitution be changed to add the right to abortion?
An employee of the constitutional council climbs stairs to the constitutional council in Paris. (Photo by JOEL SAGET / AFP)

France’s first Constitution came into force in 1791, written by the French Revolutionaries and promising liberté, egalité and fraternité.

Those values are still very much in evidence in France today (in fact they’re carved into every public building) but in 1791 medicine involved bleeding, social networks meant gossiping with your neighbours over the wall and wigs made out of horsehair were very fashionable – in short, things change.

And the French constitution changes with them.

In fact, even talking about ‘the’ constitution is a little misleading, since France has had 15 different constitutions between the French Revolution of 1789 and the adoption of the current constitution in 1958 – the birth of the Fifth Republic.

Since 1958, there have also been 24 revisions to the constitution. Introducing it, then-President Charles du Gaulle said “the rest is a matter for men,” (we’ll give him the benefit of the doubt and assume he meant people, since women did have the vote by then) in other words, he envisaged that it would be revised when necessary.

So the short answer is that constitutional change in France is possible – and there is significant precedent for it – but there are several steps involved. 

What does it take to change the Constitution?

Changing the constitution in France requires Presidential approval, plus the approval of both houses of parliament (the Assemblée nationale and the Senate) and then the approval of the final text by a three-fifths majority of two parliaments.

The other option is a referendum, but only after the two assemblies have voted in favour.

In short, it needs to be an issue that has wide and cross-party support.

Articles 11 and 89 of the French constitution cover changes.

Article 11 allows for a constitutional referendum, which is a tool that is intended to give the people decisive power in legislative matters. A high-profile example of this is when former French President Charles de Gaulle employed Article 11 to to introduce the appointment of the president by direct universal suffrage in 1962, which modified then-Article 6 of the constitution. However, this method of changing the constitution is controversial, and can technically only be done for specific themes: the organisation of public authorities, economic and social reforms, or to ratify international treaties. Technically it does not require the referendum to first pass through parliament.

What did previous reforms cover?

Looking at the reforms in the last 60 years, the scope has been pretty wide.

The French Constitution was substantially amended to “take account of these new developments, needs, ideas, and values.” The goal of these amendments was to better “define and control the power of the executive, to increase the powers of Parliament, and to better assure the protection of fundamental rights.”

About 47 articles were amended or drafted, and some new provisions came into force immediately, such as the limitation to two consecutive presidential terms. 

Examples range from the 2000 Constitutional referendum where French people voted to shorten the presidential term from seven years to five years; the 2007 constitutional amendment to abolish the death penalty, and several amendments to adapt the French constitution to make it compatible with EU treaties such as the Maastricht and Lisbon treaties. 

Is a constitutional change more powerful than a law?

The most recent call for change – sparked by events in America – is to add the right to abortion into the constitution.

The right to abortion in France is protected by the “Veil law,” which was passed in 1975, so is there a benefit to adding it to the constitution as well?

Simply being a law does not give a definitive and irrevocable right to abortion in France and the law can be changed – parliament recently elongated the legal time limit for performing an abortion up to 14 weeks, which shows that under different circumstances lawmakers would be free to remove these provisions and chip away at the “Veil law.”

READ MORE: EXPLAINED: What is the law on abortion in France?

If a majority of deputés agreed on a text banning abortion it could become law (although there are other procedural steps to pass through and such a decision would be challenged in the courts). Whereas, as outlined above, changing a constitutional right requires a much broader consensus from across the political spectrum.

In short, enshrining the right in the constitution would provide further protection for the right in the event of a future government that is anti-abortion – Marine Le Pen, who came second in the recent residential election has always been very vague on whether she supports the right to abortion, while many in her party are openly anti-abortion.

Why has France had so many constitutions?

The simple answer is that France’s many constitutions have reflected the shift between authoritarianism and republicanism throughout French history.

France is currently on its Fifth Republic, and its history since the French Revolution has also involved several periods of restoration of the monarchy and a brief period under an Emperor – all of these different regimes have required their own constitution.

READ MORE: Explained: What is the French Fifth Republic?

During the tumultuous revolutionary period, France had several constitutions, culminating in “Constitution of the Year XII,” which established the First French Empire. When the monarchy was restored, a new constitution codified the attempt to establish a constitutional monarchy.

France’s current constitution ushered in the Fifth Republic, largely at the behest of General Charles de Gaulle who was called to power during the May 1958 political crisis. One of the defining characteristics of the Fifth Republic is that it is a democracy, though the executive (the president) holds a significant amount of power.

So far, the Fifth Republic’s constitution has lasted 64 years, and should the Fifth Republic last until 2028, it will be the longest Republic – even longer than the Third Republic which endured from 1870 to 1940.

Could France have a new constitution in the future?

It is very possible. Former left-wing presidential candidate, Jean-Luc Mélenchon has proposed a Sixth Republic, which, according to France 24, would involve “proportional representation to make parliament more representative; giving citizens the power to initiate legislation and referendums, and to revoke their representatives; and scrapping special powers that currently give France’s executive right to pass legislation without parliamentary approval.” 

Mélenchon failed in his 2022 presidential bid however, so the Fifth Republic is still – for the moment – on course to beat that longevity record.

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POLITICS

How one beheading 50 years ago led France to end the death penalty

On a biting cold morning on November 28, 1972, a Frenchman was guillotined for a murder he did not commit, in a case that so traumatised his lawyer he would spend the rest of his life campaigning to end the death penalty.

How one beheading 50 years ago led France to end the death penalty

Roger Bontems, 36, was beheaded for being an accessory to the brutal murder of a nurse and a guard during a break-out attempt at a prison in eastern France.

Seven minutes after he was decapitated in the courtyard of La Sante prison in Paris, his co-conspirator Claude Buffet – a 39-year-old man convicted of a double murder that had sent shockwaves through France – met a similar end.

Among the witnesses of the executions was Robert Badinter, a crusading young lawyer who was haunted by his failure to save the life of his client Bontems.

In a 2002 interview, Badinter, who, as justice minister, famously defied a hostile French public to abolish capital punishment in 1981, revealed that for a long time after Bontems’s death, “on waking around dawn, I would obsessively mull over why we had failed”.

“They had accepted that he had not killed anyone. Why, then, did they sentence him to death?”

Knives made from spoons

In September 1971, Buffet, a hardened criminal who is serving a life sentence for murder at Clairvaux prison, convinces fellow inmate Roger Bontems, who is serving a 20-year term for assault and aggravated theft, to join him in a high-stakes escape attempt.

The pair fake illness and are taken to the infirmary where, armed with knives carved out of spoons, they take a nurse and a guard hostage.

They threaten to execute their captives unless they are freed and given weapons.

This precipitates a standoff with the authorities that keeps the French glued to their TV screens until police storm the prison at dawn and find both hostages dead, their throats slit.

Calls for heads to roll

The grisly murder of the nurse, a mother of two, and the prison warden, father of a one-year-old girl, sparks an impassioned debate about the death penalty, which has not been implemented since President Georges Pompidou, a pragmatic Gaullist, came to power two years earlier.

Hundreds of people baying for the mens’ heads pack the streets outside the courthouse when they go on trial in Aube in 1972. The nurse’s husband and warden’s family are among those attending.

Buffet, who is portrayed in the media as a heartless monster, admits to killing the guard and stabbing the nurse, and defies the court to sentence him to death.

Bontems is found guilty of merely being an accessory. But he is also given the death penalty, amid intense pressure from prison wardens’ groups seeking revenge for their colleague’s death.

Badinter appeals to the highest court in the land not to apply the law of “an eye for an eye”, and then to Pompidou, who has pardoned six other death-row prisoners.

His pleas fall on deaf ears in the face of a poll showing 63 percent of the French favour capital punishment.

An activist is born

On November 28, 1971, Bontems and Buffet are beheaded in the courtyard of La Sante prison, under a giant black canopy erected to prevent the media snapping pictures from a helicopter.

Badinter, whose Jewish father died in a Nazi death camp, would later say the case changed his stance on the death penalty “from an intellectual conviction to an activist passion”.

“I swore to myself on leaving the courtyard of la Sante prison that morning at dawn, that I would spend the rest of my life combatting the death penalty,” Badinter told AFP in 2021.

Five years later he helped convince a jury not to execute a man who kidnapped and murdered a seven-year-old boy, in a case that he turned into a trial of the death penalty itself.

Badinter called in experts to describe in grisly detail the workings of the guillotine, which had been used to decapitate prisoners since the French Revolution of 1789.

In all, he saved six men from execution, eliciting death threats in the process.

“We entered the court by the front door and once the verdict had been read and the accused’s head was safe, we often had to leave by a hidden stairway,” the man dubbed “the murderers’ lawyer” by his detractors, recalled.

When he was appointed justice minister in President Francois Mitterrand’s first Socialist government in June 1981, he made ending the death penalty an immediate priority.

Its abolition was finally adopted by parliament on September 30, 1981, after a landmark address by Badinter to MPs.

Decrying a “killer” justice system, he said: “Tomorrow, thanks to you, there will no longer be the stealthy executions at dawn, under a black canopy, that shame us all.”

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