By: naledi mashishi
March 20 2024
Is France the first to enshrine abortion rights in its constitution? And why does it matter?
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Source: Reuters/Photo by Adnan Farzat/NurPhoto
On March 4, 2024, France made the historic decision to enshrine abortion rights in its constitution. The move came on the back of the U.S. Supreme Court's decision to overturn Roe v Wade in June 2022, which had previously guaranteed women's right to access abortion on a federal level.
The decision has led to women across the U.S. facing legal barriers in accessing abortions as more states introduce restrictions, with some states like Idaho voting to outlaw abortion even in medical emergencies. Since the decision, researchers have recorded a spike in online abortion-related misinformation, including dangerous at-home abortion methods, false claims about abortion causing infertility and mental illness, and posts likening abortion to genocide.
The Supreme Court's decision signaled that without robust legal protections in place, abortion access would remain precarious and susceptible to changing political sentiments. The move sparked panic in France that a similar anti-abortion movement may seek to roll back abortion rights. This prompted France's President Macron to pledge to include abortion rights in the constitution, making women's right to choose "irreversible." This move is part of the country's efforts to expand access to abortion, which has included increasing the time limit from 12 weeks to 14 weeks in 2022.
Media organizations and reproductive rights activists have praised the decision. France24 called it a "global first" that made France "the only country in the world to clearly protect the right to terminate a pregnancy in its basic law." Other outlets like BBC and Politico reported on it similarly, and Amnesty International called France "the first country ever to enshrine abortion in its constitution."
But, the media framing triggered a heated debate on social media. Some of the loudest voices have come from South Africans on X (formerly known as Twitter), who have argued that South Africa enshrined the right to abortion in its constitution in 1996, while others pointed out that Yugoslavia was first in the 1970s.
"The world is bigger than the west! Idiots," said one X user in response to the reportage. Another journalist with a large following posted, "This [abortion access] has been in South Africa's constitution for decades. Well done France but we need to see and report with our global eyes."
So, who was really first? And why does it matter?
Yugoslavia guaranteed reproductive rights in 1974
In its 1974 constitution, the former state of Yugoslavia explicitly gave its citizens the right to family planning. Translations vary, but one English version of the constitution accessible online, Article 191, states, "It is a human right to freely decide on family planning. That right may only be restricted for reasons of health."
A different translation of this article speaks more specifically to the right to make decisions about a pregnancy, stating, "It is the right of the human being to freely decide on the birth of children. This right can only be restricted for the protection of health." Yugoslavia dissolved in 1992, but former member state Serbia chose to retain this right in its 2006 constitution, which reads, "Everyone has the right to freely decide on the birth of children."
France's decision differs in that it makes the right to abortion explicit, providing legal protection to the medical procedure against growing disinformation narratives that argue against the procedure being medically necessary. The French constitutional amendment gives women a "guaranteed freedom" to choose to terminate their pregnancy. Some feminist scholars like Serbian women's rights activist Tanja Ignjatovic have argued that this explicit language is an important political step. "It is important also because laws regulating abortion can change in both directions, towards liberalization or towards significant reduction and restriction of rights," she writes.
However, there's a problem with labeling France the first. It doesn't recognize progress made in the Global South.
Abortion vs. reproductive healthcare
France isn't the first country to explicitly mention the word abortion in its constitution. Kenya's 2006 constitution explicitly mentions abortion, but the rights it affords are far more limited. Article 26 says, "Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law."
South Africa's constitution has more broadly recognized and protected reproductive rights since 1996. Its Chapter 2 Bill of Rights states that everyone has a right to "make decisions regarding reproduction" and that everyone has the right "to have access to health care services, including reproductive health care." The constitution takes this a step further by adding, "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights." This places a legal obligation on the state to make reproductive health care, including abortion, accessible to all.
Dr. Tlaleng Mofokeng is the U.N. Special Rapporteur on Health and a South African medical doctor specializing in reproductive healthcare. She told Logically Facts that there is a need to caution against framing laws that refer to reproductive healthcare and abortion as separate because reproductive healthcare inherently includes abortion.
"I think with a lot of people in this conversation, they want the constitution to say abortion and…I think we're going to shoot ourselves in the foot if we allow people to silo the discussion around SRHR (sexual and reproductive health and rights). All of it is included."
She added, "We shouldn't just break it down into single individual laws because there is a problem of allowing anti-choice movements to then cherry-pick which reproductive health they want and which they don't want."
Mofokeng told Logically Facts that the South African constitution in its current form allowed for the 1996 Choice on Termination of Pregnancy Act, which legalized abortion up to 12 weeks for any reason and 20 weeks if the mother's mental or physical health or socioeconomic status were threatened by the pregnancy. Further, these laws have meant that Mofokeng and her colleagues have never lost an urgent application for an abortion in court.
In this sense, she argues, "in the South African constitution, the right to an abortion is there."
Reporting can betray "biases" in who gets acknowledged
Dr. Lucía Berro Pizzarossa is a British Academy International Fellow at Birmingham Law School whose research areas include abortion law and regulation. She told Logically Facts that while France's step is a "powerful political symbol" that shows an unequivocal commitment to abortion rights, it's important to recognize other countries that offer constitutional protections for abortion access.
"It is important to acknowledge certain biases in only recognizing progress when it's in the global north and neglecting the important work and contributions to the abortion discourse happening in other regions," she said.
Several states in South America have also made recent legal gains in guaranteeing access to abortion. In February 2022, Colombia decriminalized abortion up to 24 weeks after a historic constitutional court ruling, meaning that women would no longer face prosecution for seeking abortions. The decision followed a similar constitutional ruling in Mexico that decriminalized abortion and a 2020 bill in Argentina that legalized providing free abortions for any reason up to 14 weeks of pregnancy.
Abortion rights activists gather to celebrate the second anniversary of the decriminalization of abortion up to 24 weeks of gestation in front of the constitutional court in Bogota, Colombia, February 21, 2024. (Source:REUTERS/Luisa Gonzalez)
Mofokeng argues that the erasure of progress in the Global South forms part of a long history of false narratives and misinformation that have positioned the Global North as the gold standard of progress and the Global South as subjects in need of Western saviors. "If you look at India, South Africa, Latin America, we are far ahead in terms of jurisprudence and developing human rights standard setting than Europe and America combined," she says.
"But because they don't have the media and they do not have the political strength to garner that gaze and that applause, a lot of what good work is being done by them goes by unseen."
However, constitutional protections are only half the story. While robust legal frameworks are important, women can often continue to face barriers to access abortion. For example, a 2017 U.K. study found that women who were seeking abortions outside of formal clinic settings cited reasons such as long waiting times, distance to clinics, prior negative experiences, and stigma.
"Women in France have to travel to access abortions, and many seek abortion in other countries in the EU that allow abortions further in the gestational period, like the Netherlands," Pizzarossa added. "That will not be solved by a constitutional amendment but with strong policies in place to ensure we translate those legal commitments into effective access."
France's landmark decision to include the right to access abortion in its constitution has widely been lauded by media and human rights organizations. But framing France as the first country in the world to do so ignores the history of reproductive rights freedoms outside of the Western world.
Both Yugoslavia and South Africa enshrined the right to reproductive healthcare decades before France, and reproductive healthcare includes abortion access. Further, experts warn that splitting hairs over whether the word abortion was explicitly mentioned risks siloing discussions around reproductive healthcare. It also forms part of a false narrative that the Western world leads in terms of human rights while progress in the Global South goes ignored.
(This article was updated on March 26, 2024, to correct the date of France's decision to include abortion rights in its constitution to March 4, 2024)