Tessa McLeod
In March 2024, France became the first country that directly incorporated the right to abortion in their Constitution. The amendment to Article 34 of the Constitution explicitly enshrines “a woman’s guaranteed freedom to have recourse to an abortion.” However, this monumental step in the advancement of reproductive rights is only a single stage in a longer, more complex process that hasn’t always been as forward-thinking as it appears.
While France made history by being the first nation to honour the right to abortion in its Constitution, Canada’s approach to abortion is still deeply entangled in political and legal discussions. In Canada, abortion is classified as a “voluntary termination of a pregnancy” , which is a legal and regulated medical procedure. Examining the history of abortion legislation in France and Canada helps us understand the changing terrain and similar challenges to reproductive justice in both nations.
Setting the Historical Foundation:
France’s Abortion History:
1967: The Neuwirth Act was passed which legalized contraception in France, but did not authorize contraceptive propaganda or abortion
1975: The “Veil Law,” was passed by parliament which decriminalized abortion with various constraints. First, a mandatory ten-week pregnancy to obtain an abortion. Second, medical professionals are granted a “conscience clause” which requires a document that proves that the person seeking an abortion is “in distress”. Abortions also require a minimum of three appointments with: a registered physician, a mental health professional, and one with a parent or legal guardian. Furthermore, the abortion cannot proceed until seven days have passed after the initial consultation. Finally, social security does not fund this procedure.
1982: Partial funding of abortions began.
1988: France was the first Western nation to legalize the abortion pill (commonly called Mifepristone or RU 486). The pill was developed by Etienne-Emile Baulieu and patented by the Roussel-UCLAF laboratory. The French Minister of Health at the time, Claude Evin, wouldn’t let the company take the chemical off the market as they claimed the abortion pill was “the moral property of women”.
2001: The law was changed to extend the legal period to obtain an abortion from 10 to 12 weeks of pregnancy.
2012: The French government began offering complete funding for abortion.
2016: The 7-day “reflection” delay between the demand for abortion and the actual abortion is eliminated for majors and reduced to 48 hours for minors. Midwives were now permitted to administer medical abortions under identical circumstances to physicians. Each procedure that is necessary within the context of abortion care is reimbursed.
2020: During the COVID-19 pandemic, telemedical abortions were permitted in France until the seventh week of amenorrhea. It was permissible for pregnant individuals to engage in teleconsultations with physicians to administer abortion medications conveniently from their homes. After deconfinement, this particular provision was eliminated.
2024: The right to abortion becomes part of France’s Constitution.
Evidently, the 20th century marked a significant change surrounding abortion in France, leading to shifting public perceptions on gendered issues. By the 1960s and 1970s, feminist movements advocating for reproductive rights began challenging the traditional perspective. This marked a broader cultural shift toward gender equality and personal freedoms. Thus, analyzing the history of abortion in France gives us the historical framework to understand how its abortion rights came to be included in their Constitution.
Consequently, to compare France with Canada, we must do the same with Canada’s historical legal framework surrounding abortion. It is important to note that abortion is not a constitutional right in Canada; it is merely decriminalized. However, this was not always the case.
Canada’s Abortion History:
1969: Until 1969, inducing an abortion was a criminal under Section 251 of the Criminal Code. The highest penalty for a doctor or anybody else assisting a woman in terminating her pregnancy was life imprisonment. If the woman was found guilty for administering an abortion on herself, she faced a two-year sentence.
Emily Stowe is a groundbreaking abortion case. Stowe was the second Canadian woman to be licensed to practice medicine. In 1879, Stowe was charged with performing an abortion on a 19-year-old named Sarah, by administering a medication that could lead to a miscarriage. She was eventually acquitted following a lengthy and highly publicized trial. The trial of Stowe demonstrated how seriously officials took the crime of abortion in the late 19th century.
By the mid-twentieth century, official opinions had shifted, and abortion laws were rarely enforced against doctors.
1969: The Criminal Code was modified in 1969 by Prime Minister Pierre Trudeau’s administration. In certified hospitals, doctors were permitted to conduct abortions if a woman’s health or life was in danger due to her pregnancy and the procedure needed to be approved by a medical committee. In every other situation, abortion was still prohibited.
1988: In 1988, the case R. v Morgentaler was heard at the Supreme Court of Canada (SCC).
Dr. Morgentaler advocated for women’s reproductive rights at a time when they couldn’t legally obtain abortions. Over the 1980s, he created illegal abortion clinics across Canada and challenged the federal and provincial governments to repeal the Canadian abortion laws. After being charged for illegally performing 14 abortions, the SCC ruled that Criminal Code provisions regarding abortion violated Section 7 of The Canadian Charter of Rights and Freedoms, which states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Chief Justice Brian Dickson concluded that “[f]orcing a woman, by threat of criminal sanction to carry a foetus [sic] to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of her security of the person.” As a result, the anti-abortion law was struck down and has remained legal since 1988.
It is also important to mention the 1989 case of Tremblay v Daigle in which the SCC found that constitutional rights began the moment the fetus is born and that the father of the fetus may not prevent an individual from exercising their rights to choose to obtain an abortion. This ruling reinforced the legal structure set out by R. v. Morgentaler (1988) and protected reproductive autonomy by dismissing claims that might hinder individual medical decisions.
As promising as these developments were, no further steps were made. While there are no statutes prohibiting it, abortion is still not a constitutionally protected right under the Canadian Charter of Rights and Freedoms. Instead, it is regulated as a medical procedure that is publicly funded by the Canada Health Act(CHA)
For example, under section 2 of the CHA, coverage for medically required treatments is covered, which could include abortion, but excludes certain medical services individuals are entitled to under any other Act of Parliament. Section 7 of the CHA sets out the principles of public administration, comprehensiveness, universality, portability, and accessibility. Nevertheless, the CHA does not directly mention abortion, resulting in disparities in access among provinces and territories, especially in rural and isolated regions. This exclusion facilitates disparities in service accessibility and irregular implementation of the Act’s provisions.
To rectify these deficiencies, the CHA should clearly incorporate abortion services as covered health care, guaranteeing equitable access across the nation. Federal regulations are necessary to standardize access to abortion services, irrespective of geographic location. Moreover, enhanced enforcement procedures are necessary to guarantee provincial adherence to CHA principles. Enhancing the CHA in these manners will guarantee fair distribution of abortion services and reinforce Canada’s dedication to national health care.
France Versus Canada: Jurisdictional Difference
Since abortion is now protected by the French Constitution it is solely a matter of federal jurisdiction.
However, in Canada, health care mainly falls under provincial jurisdiction, as set out in the Constitution Act, 1867. Section 92(7) of the Constitution Act, 1867 deals with health care services, such as overseeing the licensing of medical personnel, the management of hospitals and clinics and regulating health insurance and records. Although this system enables provinces to customize healthcare to meet their own requirements, it also leads to notable regional differences. Abortion services are generally more readily available in urban areas and frequently scarcer in rural and isolated areas, which amounts to various obstacles for those seeking care.
Despite not being actively involved in providing abortion services, the federal government has a significant impact according to the Canada Health Act. This Act exemplifies part of the federal government’s power to exercise jurisdiction over health matters. This law establishes national guidelines for the provision of healthcare and mandates that provinces offer abortion and other medically required procedures in order to be eligible for federal healthcare funding. Although this guarantees a minimum level of access, provinces are free to arrange and provide these services as they see fit.
While increased federal power might theoretically help address disparities in abortion access within rural and urban regions, certain constitutional limits and the benefits of provincial flexibility suggest that cooperative measures are likely more sustainable. Thus, an equilibrium between both federal funding and collaborative policymaking, could assist in filling these gaps while respecting the constitutional division of powers.
Comparative Analysis of France Versus Canada’s Abortion Law:
There are substantial jurisdictional differences between France and Canada’s approaches to abortion.
So, which is more effective, allows for more flexibility, and ensures all rights are protected?
I. Politicization
I.I Politicization in Canada
Action Canada has claimed that enacting a new law to safeguard abortion might politicize this medical operation in ways that other medical treatments are not. For instance, there is no law that provides the right to a hip replacement and specifies when and how one can undergo such a procedure. This kind of legislative silence provides flexibility for medical professionals to develop their own standards and practices.
If the government attempts to enact legislation to protect the right to abortion, it will open the way to anti-choice politicians seeking to limit abortion for a number of reasons unrelated to science or medical needs. Common reasons for abortion include financial constraints, bad timing, relationship issues, already have other children, the pregnancy resulted from sexual assault, not emotionally or mentally prepared, unable to provide a “good life” for the baby, not independent or mature enough, interferes with future plans, etc.
Therefore, if abortion rights were to become codified in law, future governments could revise or restrict these rights, which could exclude valid personal reasons for why individuals obtain abortions. These legislative constrains could further risk access to abortion and shifting abortion from a private medical decision to a politicalized one threatening the autonomy and rights of Canadians.
I.II Politicization in France
The issue of politicizing abortion is also of concern in France. The Human Rights Watch advocates that President Emmanuel Macron should guarantee that the constitutional amendment to enshrine abortion rights is not just a political statement. Despite recent progress, individuals across France continue to confront barriers to abortion treatment and have various levels of access.
For example, territorial disparities are common, affecting women from rural areas who suffer from obtaining practitioners. In urban areas, women also experience similar disparities. Urban areas can suffer from insufficient reception capacities, meaning there may not be enough healthcare facilities, staff, or resources available to support the demand for abortion services. Additionally, there are variable policies pursued by each institution resulting varying approaches or policies when it comes to providing abortion services, leading to inconsistent access and services.
Other barriers include high expenses, stigma, unwillingness of medical professionals to perform abortions due to personal or religious beliefs, and waiting periods.
While the expanded abortion protection is a triumph in itself, it should not mask other kinds of rights in which France’s government fails to set a good example. For example, ongoing violence against women, including 31 documented femicides in 2024, has raised concerns about insufficient efforts to prevent violence, defend victims, and hold offenders accountable.
To fulfill the promise of the constitutional amendment and truly signal the importance of advancing reproductive rights, the French government must continue to take meaningful action towards rendering abortion care accessible and making other efforts to protect women’s and girls’ rights throughout the country as they are disproportionately affected by poverty, conflict, and climate change.
II. Conscience Clause:
II.I Conscience Clause in France
Another criticism of France’s new abortion law is that it acquires “a greater normative value”, meaning it takes precedence over other laws protecting freedom of expression or conscience. In becoming a guaranteed freedom under the Constitution, the right to abortion is legally binding on the French legislature.
In France, the “conscience clause” on abortion has always been a fundamental element of the ethical balance between individual rights and access to healthcare. The conscience clause in the amendment makes an exception for health care professionals who exercise their “freedom of expression” in refusing to provide abortions services based on personal views. The conscience clause is seen as the main obstacle to abortion in France. Thus, with abortion recognized as a constitutional right, this protection is now subject to further examination about its alignment with the provision of “effective” access to abortion. This clause can be quite risky and defeat the purpose of the amendment doctors were to repeatedly deny access to abortion services by invoking this conscience clause.
Recent legislative discussions highlight this conflict. Attempts to eliminate the conscience provision in 2018 and 2020 were dismissed, as the National Consultative Ethics Committee (CCNE) and gynecological organizations underscored the ethical individuality of abortion. Nonetheless, the recent constitutional acknowledgment of abortion may provoke challenges to the provision, as conscientious objection is perceived by some as an impediment to equal access. The Constitutional Council, responsible for interpreting the Constitution, may evaluate freedom of conscience in relation to the new right, perhaps restricting resistance to situations considered non-discriminatory or reasonable within public health legislation.
Further, if eliminated, healthcare practitioners who refuse to perform abortions may encounter career restrictions, as evidenced by European instances such as Grimmark v Sweden and Steén v. Sweden. This transition jeopardizes the prioritization of abortion access above ethical autonomy, prompting larger inquiries regarding freedom, society values, and the changing equilibrium between rights.
II.II Conscience Clause in Canada
A similar clause exists in Canada. Section 2 of The Canadian Charter of Rights and Freedoms grants everyone the fundamental right to act in accordance with their moral or ethical beliefs. This autonomy has substantial consequences, especially in fields like health care where professional responsibilities and personal views can often clash.
Similar to their French counterparts, medical practitioners in Canada may exercise their conscience rights to decline to requests for abortion services on the basis of personal convictions. Canada’s legal system allows medical professionals to decline abortion services but commonly mandates that they refer patients to an alternative health care professional, in contrast to France, where constitutionally guaranteed acceptance of abortion may result in judicial disputes against conscience clauses. This increases the chance that a single healthcare provider’s personal views in Canada will not unnecessarily limit a patient’s access to abortion.
III. Constitutional Rigidity vs. Legal Flexibility
III.I Constitutional Rigidity vs. Legal Flexibility in France
Further, now that France recognizes abortion as a constitutional right, it becomes difficult to amend or modify the law, as constitutional amendments are generally effected by complex and protracted amending procedures. In France this amending procedure requires that a bill to revise the constitution be adopted after approval by the referendum or by the membership of both the National Assembly and Senate in a joint session known as Congress. Then a majority of three-fifths of votes by the Congress participants is required to enact the change.
This rigidity could prove problematic if cultural norms or medical situations alter in ways that require adjustments to the legal regime. For example, emerging reproductive health technology such as artificial wombs, non-invasive abortion techniques, or advancements in prenatal diagnostics are eligible for revisions to current laws and regulations. The provision of current, efficient healthcare may be hindered if these improvements necessitate constitutional revisions in order to conform to the larger legal framework.
Furthermore, evolving cultural viewpoints, such as how abortion is perceived in connection to parental rights, gender equality, or wider healthcare priorities may also call for legal modifications that are limited by the rigidity of France’s constitutional provisions.
III.II Constitutional Rigidity vs. Legal Flexibility in Canda
In contrast, since abortion in Canada is considered as a matter of healthcare as opposed to a constitutional right, legal norms that concern abortion are more responsive to advances in medical advancements and/or changes. This flexibility enables laws and practices affecting abortion access to adapt more quickly, avoiding a potentially controversial and time-consuming constitutional amendment process. However, this adaptability makes abortion rights more vulnerable to changes in legislative and public opinion because there is no established legal safeguard that more firmly anchors their existence.
Concluding Remarks
The protection of reproductive autonomy has advanced significantly with France’s decision to make abortion a constitutional right but also brings new complications. Despite offering strong protection to abortion rights, this constitutional method bears the risk of being inflexible and possibly interfering with freedoms set out in the Charter. In contrast, Canada’s health care-based abortion regime is more adaptable to changes in medical and social views but has the disadvantage of abortion rights more susceptible to changes in politics and geographical accessibility imbalances.
Examining these two systems side by side reveals the compromise that must be made between legislative flexibility and constitutional enshrinement. To guarantee that reproductive rights are effectively protected, both nations must keep striking a balance between individual rights, access to treatment, and changing social norms. Although both France and Canada aim to strike a balance between constitutional enshrinement and legislative flexibility in an attempt to safeguard reproductive rights, the persistent inequalities in accessibility and the possibility of politicization suggest that this balance is still being worked out and that constant effort is needed to guarantee equal and long-term guarantees for reproductive autonomy.
Tessa McLeod is a 1L student at McGill’s Faculty of Law. She received her BA (hons) in criminal justice from the University of Winnipeg in 2024. Writing her honours thesis confirmed her desire to explore health law regarding issues surrounding women’s health and autonomy in Canada. She hopes to find a career in law where she can use her criminal justice education and work experience in conjunction with her passion for health law.
McGill Journal of Law and Health 
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