Right to abortion: the backtracking in the US and constitutionalization in France

Across European history, the right to abortion has been threatened countless times and has been a central topic in recent political debates. France is the pioneer when talking about the integration of the right to abortion in the Constitution. On the other hand, the US are taking away women's freedom and right to self-determination.

Beatrice Borrelli

The threats to the right to abortion are not a new phenomena in European and International history. To this extent, it is not rare to see women advocating for the right to abortion and its recognition, which should be an absolute necessity nowadays. The right to abortion not only allows women to self-determine their choices, but it also crucially ensures them safe access to abortion. 

Regardless of whether abortion is legal or not, women still regularly access abortion services. The right to abortion is essential not only to guarantee women the right to abortion, but mostly to allow them having safe access to abortion. As established by Amnesty International, one in four pregnancies worldwide ends with an abortion every year. Indeed, when a country rejects the recognition of the right to abortion it triggers a series of mechanisms that lead women to abort in unsafe conditions and illegally: if a country does not recognize the right to abortion, women are led to abort in unsafe conditions and risk their own lives. As shown by the Guttmacher Institute, in countries where the right to abortion is completely banned or allowed only when the mother’s life is at risk, 37 out of 1,000 women recur to abortion. On the other hand, in the countries where the right to abortion is broadly allowed, 34 out of 1,000 women recur to abortion. 

What does the data show us? Apparently, whether abortion is legal or not, women recur to abortion in any case. In the majority of cases, when the right to abortion is completely banned, women resort to illegal abortion, which is realized under unsafe conditions. In 2022, PAHO affirmed that over 25 million unsafe abortions occurred every year. 

Each action corresponds to a reaction

The US Supreme Court’s decision to overturn Roe v. Wade in June 2022 has had disastrous effects across US states. Initially, the Mississippi law banning abortion after 15 weeks of pregnancy was challenged: it was declared unconstitutional by a lower court. Here, Mississippi asked not only to uphold the unconstitutionality of its law, but to consider the right to abortion unconstitutional in its totality. 

Before Roe v. Wade (1973), each individual state of the U.S. had the power to regulate abortion under its legislation. To this extent, before 1973, in at least 30 states the right to abortion was considered as a crime; on the other hand, in 1967 Colorado was the first state to depenalize abortion, even if only in case of rape, incest, or when the pregnancy would cause physical disability to the woman. 

With Roe v. Wade, all the laws that penalized and criminalized abortion in the US were abolished. 

However, with Dobbs v. Jackson Women's Health Organization (2022), the US Supreme Court overruled both Roe v. Wade and Planned Parenthood v. Casey (1992), returning to each individual state the power to decide and regulate the right to abortion. The US Supreme Court analyzed the Mississippi abortion law – which establishes that after the 15th week of pregnancy abortion is illegal, unless under very specific and limited circumstances – and expressed a decision in favor of Mississippi’s request. As a consequence, millions of women will not be able to abort safely and they will probably resort to illegal and unsafe abortions, putting their own lives on the edge.  

France: the constitutionalization of the right to abortion and Europe's reaction

After the developments in the US since 2022, President Emmanuel Macron was scared France could face the same fate. As a reaction, France has very recently included the right to abortion in the French Constitution. Moreover, to celebrate, the Eiffel Tower was lit up with the sentence “#MonCorpsMonChoix” (MyBodyMyChoice). 

267 senators voted in favor of the constitutionalization of the right to abortion , while only 50 senators, a clear minority, voted against making the right to abortion an integral part of the French Constitution. 

The Article 34 of the Constitution was modified on the 8th of March 2024 – Women’s Day – and it went into effect starting from the 10th of March. From the 10th of March, the possibility to access the voluntary interruption of pregnancy is ensured to women. 

Originally, abortion was legalized in France with the “Veil” law of 1975, which took the name from French politician Simone Veil. The law established the conditions under which the right to abortion is allowed in the French Republic. 

Starting from 1975, women could decide to interrupt the pregnancy before the end of the 10th week of pregnancy, but the request of abortion had to be authorized by the doctor. In 2001, the right to abortion’s law changed slightly; in fact, women could decide to abort up to the 12th week, rather than the 10th. Finally, in March 2022, the legal term for abortion shifted once again, from 12 to 14 weeks.

The constitutionalization of the right to abortion is an amazing step that is marking proudly and positively the history of France. Despite the constitutional amendment’s promise, the French government should address obstacles to abortion care and take concrete steps to allow women to have a safe abortion. 

If we look at the European Union, however, even if France has constitutionalized the right to abortion, in Poland abortion is illegal, unless the pregnancy is the result of rape or when the woman’s life is at risk. Moreover, Malta is known to have the strictest laws inside the European Union; to this extent, until 2023, Malta was the only State inside the European Union that completely banned abortion. Now, it is allowed only when the woman’s life is at risk. 

As previously mentioned, it can be noticed that France is making steps forward to guarantee the right to abortion to women. However, it cannot be said the same for other states. Thus, in some states of the European Union, like Hungary, Poland and Malta women still have to fight to improve, depenalize and legalize the right to abortion.