Could Canada follow France on abortion?
Enshrining right in constitution a bold move in a world veering right
However linked the two countries’ histories, however shared their values, it is difficult to imagine Canada following in France’s footsteps to enshrine the right to abortion in the Constitution.
French lawmakers did that Monday in a historic vote at Château de Versailles that puts the ability to end a pregnancy right up there with the country’s famous motto: “Liberté, Égalité, Fraternité.”
“Everything in our history proves that freedoms are at risk, fragile, at the mercy of those who make the decisions,” Prime Minister Gabriel Attal said ahead of the vote. “When we want to attack the liberty of a people, it always starts by attacking those of women.”
The vote makes France the first country in the world to include the right of a pregnant woman to end her pregnancy in its constitution.
Every other country whose founding legal document mentions abortion does so to outlaw the medical procedure, Agnès Canayer, a French senator, noted in a debate last week.
But France’s upgrading of abortion rights is also a bold political message in a world that is increasingly veering to the far right — even if it remains largely a symbolic gesture.
Abortion was legalized in France in 1975, in a law sponsored by trailblazing feminist and Auschwitz survivor Simon Veil, the thenhealth minister. It was intended to protect women from the hazards of illegal and unregulated procedures.
In Canada, abortion was decriminalized by the Supreme Court in 1988, when judges ruled that the legal restrictions on abortion violated a pregnant woman’s Charter rights — namely freedom and security over her body. No law was introduced to expressly legalize the procedure.
France doesn’t share Canada’s domestic political fault lines.
A 2022 poll on the issue found that eight in 10 French people support the right to abortion, compared to 57 per cent of Canadians who said the country needed a law to guarantee abortion rights, according to a 2022 Angus-Reid survey.
Whether from Paris or Perpignan, whether rich or poor, whether a supporter of Macron’s party or that of his hard-right rival, Marie Le Pen, the vast majority back abortion rights unblinkingly.
So why the rush to give constitutional cover to a medical procedure that is not seemingly under threat?
Macron, like Prime Minister Justin Trudeau, is a centrist politician struggling under a rising tide of right-wing leadership in the world.
He condemned the U.S. Supreme Court decision in June 2022 that overturned Roe v. Wade by ruling that American women had no constitutionally protected right to receive an abortion.
And France’s justice minister, Éric Dupond-Moretti, evoked threats closer to home ahead of last week’s vote before the French Senate.
The recently defeated right-wing government in Poland outlawed abortion except in cases of rape, incest or if the mother’s life was at risk, he reminded lawmakers, while Hungarian laws oblige women seeking an abortion to first listen the fetus’s heartbeat.
“Some say that abortion is not under threat,” Dupond-Moretti said. “All the better if that’s the case, but if the future proves them wrong, ladies and gentlemen of the Senate, it will be too late.”
Could Trudeau follow France’s lead? The answer is yes, if he wanted to, though it is considerably less complicated to amend France’s constitution than it is to change Canada’s.
In France, it requires that threefifths of a joint session of the National Assembly and the Senate — consisting of nearly 900 lawmakers — support the constitutional change.
In Canada, there is an “amending formula” that is as complicated as it sounds.
Under this scheme, changes to the Constitution must be approved by the House of Commons, by the Senate and by at least seven provinces representing at least 50 per cent of the population.
Other matters, such as the monarchy, the official languages of Canada and the Supreme Court are considered to be so fundamental that they require unanimous consent under Section 41 of the Constitution.
A more poignant question is should and would Canada ever follow France’s lead.
Attal, the French prime minister, issued a wise political warning in his speech Monday: “We should always have a trembling hand when we touch our supreme laws.”
If abortion is to remain a political wedge issue in Canada, used to animate and draw in political supporters on the left as much as the right, then there is a risk that including it in the Constitution would turn the country’s core legal document into a text that is tinkered with by each incoming government of a different persuasion or political stripe.
But if Canada is a country that stands firmly behind the right to abortion — if today’s leaders do not want to see it undone by some future political formation — then enshrining that right at least in law if not in the Constitution would be a rare act of political gravity.
We should always have a trembling hand when we touch our supreme laws.
GABRIEL ATTAL FRENCH PRIME MINISTER