Why changing the constitution doesn't guarantee access to abortion in France

Commentators have hailed France's decision to protect abortion rights within its constitution as a legal milestone. But healthcare workers are warning that having the right to an abortion and having access to one remain two different things. 

"Enshrining this right in the constitution makes it practically untouchable," declared long-time women's rights activist and former leftwing MP Danielle Bousquet, speaking to RFI on the day that both houses of the French parliament approved the move.

Article 34 of the charter now states: "The law determines the conditions by which the freedom of women to have recourse to an abortion, which is guaranteed, is exercised."

First legalised in France in 1975, abortion was previously authorised by successive acts of parliament – acts that parliament could potentially have repealed if a majority of lawmakers agreed. 

Now any legislation that seeks to revoke abortion rights would face censure by the Constitutional Council, the court that rules whether new laws comply with the constitution.

Instead lawmakers would have to amend the constitution once again, a complicated process that involves calling an exceptional joint session of parliament and securing three-fifths of MPs' votes – or referring the matter to a public referendum. 

That extra level of protection is "very, very good news", said Delphine Giraud, co-president of Anso, an association of midwives delivering reproductive healthcare.

"It shows that the French public wants this right to be set in stone. And as professionals working on the ground, we hope that it will have real consequences for access to abortion, because unfortunately it's still difficult to access it throughout the country."

Few practitioners

One of the primary challenges is finding someone to perform the procedure.

Only a small fraction of medical professionals in France practice it. In 2018, fewer than 2,000 doctors and midwives in private practice carried out 25 percent of all abortions that year, according to a 2020 parliamentary report – the equivalent of around 3 percent of all such practitioners.

Most abortions take place in hospitals, yet years of restructuring and closures have resulted in fewer dedicated units within stretched public institutions. 

"In hospitals, abortion is kind of the poor relation: often establishments see it as a variable to be adjusted," Giraud told RFI.

"In other words they prioritise other, more 'noble' specialities, and then if there's any room left on the table they'll add in abortions. It's never seen as a priority."

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Medical deserts

The French Family Planning association estimates that 130 abortion centres have closed in the past 15 years or so.

And as small hospitals and clinics shut and consolidate with larger ones, parts of the country find themselves becoming so-called medical deserts – areas with an absence of services where people are forced to travel far to get the care they need.

"There are real inequalities when it comes to accessing care in different parts of France," said Sophie Gaudu, an obstetrician-gynaecologist and co-founder of Revho, a network that draws together abortion providers in the greater Paris region.

"If you live in a medical desert or somewhere with limited access to healthcare and midwives, my goodness it gets difficult. Some women are forced to change area and travel dozens of kilometres to get an abortion." 

Around 17 percent of women getting an abortion in mainland France travel outside their department of residence, according to 2022 statistics from the Directorate of Research, Studies, Evaluation and Statistics (Drees).

That figure rises as high as 48 percent in the Ardèche department in the south-east.

Unequal choices

The range of abortion services available also varies widely, Gaudu stressed, with not all centres offering both medical and surgical terminations.

"And at the end of the day patients will go wherever they can end their pregnancy, without really having a say in the method used," she told RFI.

In 2022 some 78 percent of abortions in France were delivered medically by giving a patient drugs that terminate her pregnancy.

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But this method is only authorised until seven weeks into a pregnancy, which leaves women reliant on surgical providers in the crucial window between eight and 14 weeks, beyond which terminations are no longer allowed.

Such providers can be hard to find, suggested Gaudu. 

"The number of people who offer abortions in France isn't as small as all that," she said, noting that her organisation alone trains more than 400 medical professionals a year in the procedure.

"It's for surgical abortions that there's a lack of practitioners."

'Conscience clause'

According to the parliamentary report, several centres refuse to perform surgical abortions up to the 14-week limit, arguing that the procedure becomes harder and higher risk the later it gets (which is not necessarily the case).

French law also allows medics to opt out of the procedure on personal grounds.

The public health code states that professionals can decline any form of care for their own reasons, and on top, a so-called "double conscience clause" specifically authorises health professionals to refuse to give abortions – provided they refer patients to another practitioner instead. 

"In practice, however, this reorientation is often lacking," the report notes – whether because doctors either don't know where to direct patients or simply don't want to.

Family Planning and other advocacy groups have been calling for years for France to scrap the clause that singles out abortion, which they say has a stigmatising effect. But so far all efforts to rewrite it have failed. 

No 'ratchet effect'

The logistics of aborting in France may yet change.

"This constitutional revision does not have a ratchet effect," public law expert Paul Cassia told French parliamentary TV channel LCP. 

In other words, things can still go backwards. While the new clause in the constitution makes it hard for lawmakers to repeal abortion rights altogether, it doesn't stop them erecting roadblocks.

"Tomorrow or the day after or the day after that, a majority could decide to reduce the legal time limit for getting an abortion or make distinctions between different circumstances," Cassia warned.

The amendment approved this week is the result of successive compromises. One of the versions originally proposed included the wording: "The law guarantees effective and equal access to the right to abortion."

Those safeguards didn't make it into the final text. 

Mathilde Panot, the MP from the hard-left France Unbowed party who originally proposed them, said she felt "pride and emotion" to see the rewritten version pass. 

But she continued: "The fight for our rights goes on, still and always."