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French president's announcement to enshrine 'right to abortion' in French constitution. Will ignoring the law hurt?

Published: 06.11.2023

Ordo Iuris

Everyone is probably familiar with the Latin paremia from Roman law, "Ignorantia iuris nocet". The essence of this principle is that an individual, referred to in the literature as a subject of the law, cannot justify his or her actions or omissions by invoking ignorance of legal norms. Without entering here into the question of the actual validity or application of this principle in France, where the head of state is currently declaring the introduction of a 'right' to abortion, it may be stated that the maxim quoted undoubtedly also expresses a certain more universal truth about life, as the authors of the 1789 Declaration of the Rights of Man and of the Citizen already noted. The question then remains: does ignorance - or in other words: contempt for the law - harm all or some?

The contrived 'right to abortion' and human rights

By way of introduction, it should be made clear that the term 'right to abortion' is an artificial creation and has no basis in any binding instrument of international or Polish law and - in my opinion - in the French Declaration of Human and Citizen's Rights of 1789, to which the current French Constitution refers. On the contrary, the human rights system adopted by the international community upholds human life, stipulating in many agreements, treaties, conventions, etc. binding on the signatory states that human life is subject to legal protection. Article 2(1) of the European Convention on Human Rights can be cited as a striking example: "everyone's right to life shall be protected by law. No one shall be deprived of his or her life intentionally save in the execution of a sentence of a court following his or her conviction of a crime for which this penalty is provided by law. It should be noted that this international agreement mentions the protection of everyone's right to life by law. In Poland, therefore, we have, first of all, the so-called Basic Law, i.e. the Constitution, which in Chapter II, entitled 'Freedoms, rights and duties of a human being and citizen', indicates the right of everyone to life and provides for the legal protection of life guaranteed to everyone (Article 38). The protection of the value of the most important for the individual - life - furthermore stems from a number of other Polish laws, with the Criminal Code at the forefront.

French constitution with a 'place' for abortion?

Against the background of the Constitution of the Republic of Poland, the constitution of the French Republic is interesting. The fundamental law of France, in force since 4 October 1958, is essentially exclusively of a systemic nature and does not contain a chapter, analogous to the Polish Constitution, regulating the issues of human and civil rights and freedoms. Instead, such provisions are indicated in the preamble of the Constitution, not directly, but by reference to the 1789 Declaration of the Rights of Man and of the Citizen. The first sentence of the preamble to the French Constitution reads: "The French people solemnly proclaim their commitment to the rights of man and the principles of national sovereignty set out in the Declaration of 1789 (...)"[1].

Leaving an assessment of the act itself and the events surrounding its adoption completely aside, it is worth looking at the provisions it contains. Already in the preamble one finds an interesting passage, stating:"The representatives of the French people, formed into the National Assembly, recognising ignorance, forgetfulness or contempt of human rights as the only causes of public misery and governmental corruption, have resolved to set forth in a solemn Declaration the natural, inalienable and sacred rights of man, so that this Declaration, constantly presented to all members of the body politic, will constantly remind them of their rights and duties (...)"[2].Two provisions of the Declaration seem to be the most relevant in terms of the subject under discussion: article 1, which recognises that "human beings are born and remain free and equal in rights.Social distinctions can only be based on considerations of the common good', and Article 4 stating that 'freedom consists in being able to do anything that does not harm others.Therefore, the exercise of the natural rights of each individual has no other limits than those which ensure the exercise of the same rights by other members of society. These limits can only be defined by law". 

In other words, in my view, it logically follows from the quoted Article 1 of the Declaration that, since "human beings are born free", human beings are equally individuals at the stage prior to the birth process (it follows from this sentence that it is human beings who are born and not "clusters of cells" who become human beings through the fact of birth).Further, Article 4 of the Declaration clearly defines the limits of the exercise of the individual's freedom - this is the condition of not harming others (in the original language: "la liberté consiste à pouvoir faire tout ce qui ne nuit pas à autrui"). Significantly, it seems that the word 'autrui', i.e. 'others', used in this provision, should not enter into the discussion of artificially created dilemmas as to whether the word 'everyone' used in the context of the right to the protection of life, e.g. in the Polish Constitution, includes the unborn human being or not. 

This argument is all the more justified because the second sentence of the said Article 4 of the Declaration refers to the enjoyment of the natural rights of every human being, and, as we know, natural rights are possessed by every being with human DNA solely by virtue of the fact that it belongs to the human race.Thus, the French Declaration draws attention to the existence of natural rights, which are now so often called into question.

"Right to abortion" in the French constitution?

This was an idea floated a few days ago by President Emanuel Macron, who had already become famous for wanting to introduce a provision guaranteeing such a right into the EU's Charter of Fundamental Rights (CFR), which is at the top of the hierarchy of EU legislation. It would appear that by calling for this change to the EU CFR, the French President has either fully ignored the obviously contradictory provisions on human dignity and the right to life, or was thinking of interfering extensively with this piece of legislation, which, however, would certainly have met with resounding opposition from some Member States. In any case, he has clearly not abandoned the subject and now intends to implement the idea of eliminating some Europeans even before birth on his own territory.

The idea of enshrining a 'right to abortion' in the French constitution seems all the more surprising given that, as already mentioned, the constitution does not, as a rule, address the issue of human rights, but regulates questions of state organisation. Arguably, 'adding' such a legal construction to the Declaration of Human and Citizen's Rights is out of the question for various reasons, but perhaps there is also some argument that the provision for an essentially non-existent 'right to abortion' simply conflicts with the provisions of the Declaration referred to by the French people in the preamble to the Constitution.

Let us hope that Poland does not follow the French example.

Our Constitution clearly stipulates in Article 38 that the state shall ensure the legal protection of life for everyone. In practice, this means, as pointed out by the Constitutional Court in its judgment in K 1/20, that "it is incumbent on the organs of the state to legislate in such a way that it protects life, and the life of every human being regardless of the situation in which they find themselves". Article 38 of the Constitution thus contains an obligation for the authorities. However, the axiology of the Polish Constitution, the rich jurisprudence of the Constitutional Tribunal on the protection of life, the relevant statutory provisions do not prevent some parliamentary representatives, journalists, activists, etc. from proclaiming slogans about the introduction of abortion legislation in a completely free way, e.g. bypassing the legislative process.

Ignorantia iuris nocet - or is it?

The profound ignorance of the law that is sometimes observed not only in our country or in France, but is understood broadly - as a conscious and deliberate mockery of certain principles, sometimes developed over many years and at the cost of many sacrifices - is bound to cause harm. The question is - to whom?Staying on the subject of unborn people, who are gradually being deprived of the legal protection of life in country after country, the answer is that it harms them.But not only.As the framers of the French Declaration of 1789 noted, 'ignorance, forgetfulness or contempt of human rights are the only causes of public misery'. Contempt for natural rights and the state laws that protect them may not result in consequences coinciding with the literal meaning of the Roman paremia, but it will affect entire societies. Katarzyna Gęsiak - Director of the Ordo Iuris Centre for Medical Law and Bioethics


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