Camille Barbe (Université de Bordeaux)
In the history of feminist constitutional discourse, March 8, 2024, will go down as a date to remember. While annually, this day celebrates international women’s day, this year it also marked the simultaneous unfolding of constitutional amendment procedures in two European countries, Ireland and France. While both tackled feminist issues, only one was adopted. Nevertheless both experiences are significant examples of the ambivalence that can exist inside such procedures. In other words, beyond appearances, Ireland’s rejection of its recent referendum(s) and France’s new constitutional disposition might not only be what they first look like. As a result, closer inspection is required to fully grasp the reach of each event.
March 8, 2024, Dublin, Ireland
A year ago, on March 8, 2023, Taoiseach Leo Varadkar announced the organisation of two constitutional referendums designed to further enshrine gender equality in the Irish Constitution. This announcement came two years after the Irish Citizens assembly on gender equality presented its final report. During his 2023 speech, Varadkar stressed the importance of the search for effective gender equality in the Irish Constitution: “Until we have full equality between men and women, parity, we are a republic unfinished.” A year later, Irish voters were called to decide on the fate of two potential constitutional amendments. The first proposal aimed at redefining the notion of “family” in article 41 in order to include families which weren’t founded on marriage. The second targeted the famous “women in the home” clause of article 41.2 and proposed to replace it by introducing a new article 42B focused on the state’s recognition of the notion of care inside a family. Both amendments were overwhelmingly rejected by Irish voters: 67.7% of them opposed to the revision modifying the definition of the family and up to 73.9% voted no to the suppression of the “women in the home” clause and the introduction of a provision focused on care. (Just 12 days after the referendum defeat, Varadkar announced that he was stepping down as Taoiseach.)
Beyond the defeat, the complicated fate of the Irish constitutional debate
While historically Ireland has always been known for its attachment to conservative values, the last two constitutional referendums of 2015 and 2018, respectively on same-sex marriage and abortion, were regarded by some as the establishment of a “progressive Ireland”. Ronan McCrea, among others noted Ireland’s transformation from “a religiously conservative, illiberal and monocultural society into a socially liberal, internationalist and multicultural one.” Following what seemed to be a general cultural change, modifying the most gendered provisions of the 1937 Constitution seemed like the next logical step forward. To outside observers, the refusal expressed by the Irish people can be seen as a profound attachment to the current wording of the Constitution regarding families and women. However, other factors must be considered when assessing the failure of both referendums.
In particular, voters were uncertain about the new constitutional language, including the vague references to “other durable relationships,” and the uncertainty around the fate of care outside of the familial sphere mentioned in article 42. The reactions to the result demonstrate that the defeat is firstly the defeat of the government’s project and not directly a rebuttal of the progressive wave that has been invoked in the Irish context. More than anything this defeat seems to target the messenger (in this case the government’s project) and not the message in itself (gender equality). However, this result comes with consequences as there probably won’t be another attempt to change the gendered provisions of the Constitution following this major defeat. Sinn Féin initially evoked the possibility to re-run the referendums with the wording of the citizens assembly, but later dismissed this option. While the consensus against the referendum seems to not be focused on keeping women in the home, it will undoubtedly keep the “women in the home” clause in the Constitution for a long time which is still, symbolically, a defeat for gender equality in Ireland.
March 8, 2024, Paris, France
On March 8, 2024, history was made in France. Members of the Parliament reunited as a Congress in Versailles, voted in favour of inscribing the “liberty to abort” in the French Constitution. The discourse around the potential need to reform the Constitution on abortion emerged after the Supreme Court of the United States reversed the constitutional right to an abortion that had been established in Roe v Wade in 1973. On a global scale, this 2024 French revision first appears to be a strong response to the 2022 Dobbs v. Jackson Women’s Health Organisation.
Beyond the win, the limited fate of the French constitutional revision
Following the revision, France was celebrated for becoming the first country to add a direct provision ensuring a woman’s liberty to have an abortion. This celebration is justified, but it calls for clarification on what this new provision actually means for people seeking an abortion in France. Abortion has been legal in France since 1975, but the conditions to have one have loosened over the years. In 2022, the French Parliament adopted a law to “strengthen the right to abortion” which notably made abortion possible up until 14 weeks of pregnancy.
The revision added a new provision to article 34 of the French constitution which now states : “The law determines the conditions under which a woman’s liberty to have a voluntary interruption of pregnancy is exercised”.Similarly to the Irish experience, the debates around the language of the revision were marked by division and uncertainty. The debate mostly centred around the difference between “the right to abort” and “the liberty to abort.” The first formulation would have implied the creation of a positive obligation for the French legislator to ensure effective access to abortion. This possibility was rejected by the Senate who opted for a less imperative formulation. In other words, the revision ensures abortion won’t become illegal but it doesn’t guarantee that it will have to be accessible to all. This is a choice which is all the more damning considering abortion access is already complicated in some parts of France.
The recent constitutional revision was useful to the extent that it prevents future governments from prohibiting abortion. However, to believe that France is now a pioneer when it comes to protecting the right to abort would be to paint an ideal picture that is simply is not the truth. French law still guarantees a “clause de conscience” (conscience clause) for healthcare professionals which allows them to refuse to perform abortion without any justification. While this clause exists across other professions, it only exists in the medical field for procedures regarding reproductive health. The persistence of this clause simultaneously isolates abortion from all the other medical acts as well as factually limiting the places which could provide one. A 2020 report presented before the French parliament noted that “the main reason for the difficulties in accessing abortion is a lack of interest in a medical procedure that is not highly valued and is considered to be of little value.” Second, there remains severe inequalities between territories with regards to access to abortion, as rural territories sometimes remain isolated. March 8, 2024, was undoubtedly a day of grand gestures in France, and while it can be celebrated it mustn’t overshadow the limitations of abortion access in France, which could benefit from an actual effective grand gesture.
Appearances and symbols in constitutional law
For both the French and Irish context, going beyond appearances provides for necessary insights. In the Irish context, it puts the failure of the referendums into perspective in terms of gender equality, since other factors seemed to have also weighed into this major rejection. In the French context, appearances are again deceiving as the celebration of a major milestone might overshadow the disappointing reality of abortion access in France.
While appearances must be investigated and enriched to avoid distortion of reality, they also can’t simply be ignored. Because they are striking, appearances can also be symbolic. In that sense, the Irish result indirectly formulates a symbolic opposition to more inclusive dispositions, whereas the French revision sends a strong symbolic commitment regarding abortion. While it is true that the symbolic significance of constitutional revisions deserves to be analysed further, the fact remains that this could and should go hand in hand with the adoption of effective constitutional provisions tending towards gender equality. As Catharine A. Mackinnon reminds us, feminism is “something to be done, more than a flag to be flown”.
Camille Barbe is a doctoral candidate in law at the Centre d’études et de recherches comparatives sur les constitutions, les libertés et l’Etat (CERCCLE) – Université de Bordeaux. Her research focuses on the interactions between parity in politics and feminist constitutionalism in France and Ireland. She was previously a trainee at the DCU Brexit Institute.
The views expressed in this blog post are the position of the author and not necessarily those of the Brexit Institute blog.