Celebrating International Women’s Day by Promoting Pro-Women Constitutional Amendments: A Risky Strategy?

—Tania Groppi, Università degli Studi di Siena

[Editor’s Note: This is one of our ICONnect columns. For more on our 2024 columnists, see here.]

March 8, 2024, International Women’s Day, was marked, in France and in Ireland, by two constitutionally significant events with very different outcomes. Both were aimed at ‘celebrating’ Women’s Day by amending their respective national constitutions.

In one instance, in a solemn and festive ceremony at Place Vendôme, in the centre of Paris, marked by a powerful speech from President Emmanuel Macron, the Minister of Justice signed the amendment enshrining the right to abortion in the French constitution. The amendment is the result of a quite recent constitutional development: this process to entrench the right to abortion started in 2022, when some parliamentary initiative bills were introduced in the National Assembly. Soon after, they began their parliamentary journey, in accord with the procedure established by Article 89 of the Constitution, which requires the bill to be approved by both  Houses (National Assembly and Senate), and after that by a referendum. Both Houses of the French parliament voted in favour of enshrining the right in the constitution, although the Senate termed it a ‘freedom’ whereas the National Assembly termed it a ‘right’ to abortion. At this stage, on the symbolic date of March 8, 2023, President Macron announced that he would submit a similar bill to the parliament. The reason is crystal clear. Article 89 of the French Constitution establishes a shortcut for amendments introduced by the government: “a Government Bill to amend the Constitution shall not be submitted to referendum where the President of the Republic decides to submit it to Parliament convened in Congress; the Government Bill to amend the Constitution shall then be approved only if it is passed by a three-fifths majority of the votes cast”. On March 4, 2024, the Congress (made up of the two Houses sitting together in Versailles) voted  an overwhelming majority in favour of the amendment (780 in favour, 72 against, with 50 abstentions), highlighting that a broad political consensus was reached.  According to the approved amendment, after the seventeenth paragraph of Article 34 of the Constitution, a new paragraph has been inserted: “The law shall determine the conditions under which the freedom guaranteed to women to have recourse to voluntary termination of pregnancy is exercised”. 

The French amendment is quite striking, for several reasons. At the comparative level, France is the first country to explicitly enshrine the right to abortion in the Constitution, after the failure of the 2022 Chilean Constitution, that was defeated in the final referendum; in many countries, this right has been recognized by courts, declaring that laws prohibiting abortion are unconstitutional and violate women’s rights.  In addition, at the domestic level, the French move is even more impressive, as the 1958 French Constitution is one of the few current constitutions lacking a bill of rights.  Article 34 is not a bill of rights – instead, it includes a list of matters that must be regulated by the legislator, and cannot be regulated by the government.  Therefore, entrenching a right at a constitutional level by introducing it as a new topic for the “legal reserve” seems to be a bit of a stretch. The astonishment grows further when looking at the debate, both at the parliamentary level and the level of public opinion: all the actors were fully persuaded that there were not specific threats to the right to abortion in France (which was first recognized at the legislative level in 1975). The main issue, as pointed out by the explanatory report to the bill introduced by the President, is the  reversal of Roe v. Wade by Dobbs in the case-law of a foreign court, such as the US Supreme Court, prompting the French Government to convey a “universal message of solidarity to all women.”

In the other instance, on the same International Women’s Day,  the Irish government submitted to popular referendum two amendment proposals dealing with women’s rights.  The Constitution of Ireland, Article 46, establishes that any proposal to amend the constitution “shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people”. Both proposals were resoundingly rejected by the voters, with an overwhelming majority of “No” vote (67 per cent for the Family referendum and 74 per cent for the Care referendum, with turnout slightly over 44 per cent).

The proposals looked like the last step in the long journey towards the modernization of the 1937 Irish constitution, to put it in syntony with the changing Irish society. With regard to previous steps, we can mention the amendments that removed the prohibition of divorce from the constitution (1995, with a fine tuning in 2019) and those that paved the way towards legislation recognising same-sex marriage (2015) and permitting abortion (2018), all of them approved by popular referendums.The first proposal was aimed at enlarging the constitutional protection of the family, as it would be given to both the family based on marriage and the family founded on “other durable relationships”.

The second proposal was aimed at replacing the language around “women in the home” with language recognising care within families. Both of these affected Article 41 of 1937 Constitution, which is part of the interwar “maternalist tradition in constitutionalism”, entrenching the breadwinner marital family model with its distinctive gender roles. These arose from the Final Report and Recommendations of the 2020-2021 Citizens’ Assembly on Gender Equality, and also, for this reason, the government decided to put them to a referendum on the symbolic date of March 8. However, the government did not retain the proposal of the Assembly, which would have liked not only to replace the “women in the home clause” with a gender-neutral alternative, but also to have proposed a State duty to take reasonable steps to support care. The government opted for a watered-down version, disappointing the supporters of the reform, as the new provision, although cleared of historical anachronism, still would lack effectiveness.

The rejection is even more striking as the proposals were supported by almost all the political parties represented in parliament, far beyond the ruling coalition, including also the opposition parties.  However, week after week, during a shambolic campaign, the proposals lost momentum, and in the last days,  opinion polls predicted “No” could win, although they did not capture the magnitude of the government’s defeat on the proposal. The interpretation of the result is a thorny issue. Many people feared that the new definition of family would open the doors to polygamy and that women would lose their social rights as a consequence of the care amendment. Some simply disliked the new wording even though they would like to get rid of the anachronistic provision, while others were confused by the combination of two not closely related topics, and yet others simply took the opportunity to express their disagreement with the government.

What can we learn from these two parallel stories, taking into account the different political and legal contexts?

The first takeaway, once more, is about referendums in constitution-making and amending. This was a significant issue in the scholarly debate after the defeat of the “plebiscito de salida” in the 2022 constitutional process in Chile.  It was pointed out that in referendums that refer to multiple and complex issues, ordinary citizens may find it extremely difficult to make a sensible decision on so many difficult issues. In the Irish case, there were not 388 articles included in a single referendum. However, it was extremely risky to hold two referendums on two different topics on the same symbolic day such as March 8, suggesting that they are linked to women’s rights, and in each of them bundling two separate issues into one single vote (the deletion of some words from the previous text and a new provision as replacement). If, as in Ireland, referendums cannot be avoided, the proposals, as well as the rules of the campaign, have to be carefully crafted to enable correct information and a rational public debate. The French presidential choice, to avoid a referendum on the right to abortion, looks even wiser after the Irish vote.

A second takeaway refers to the symbolic role of the constitutions, which was at stake in both examples presented here. March 8 was chosen as a date to sign the approved French amendment and to hold the Irish referendum, to boost the symbolic value constitutional amendments always encompass. In the French case the aim was to enhance national identity, built around women’s rights and secularism, against regressive tendencies emerging in some countries, but especially in the US. In the Irish case, the amendments should have ratified the accomplished modernization of the country. In both cases, proponent governments wanted to stand out as defenders of women, by taking advantage of the symbolic role of constitutional amendments. However, although constitutions matter, including as symbols, the risk of gender-washing cannot be excluded in such symbolic moves. Women, and their International Day, deserve concrete policies, and cannot be kept quiet with a sop.

Suggested citation: Tania Groppi, Celebrating International Women’s Day by Promoting Pro-Women Constitutional Amendments: A Risky Strategy? Int’l J. Const. L. Blog, Mar. 13, 2024, at: http://www.iconnectblog.com/celebrating-international-womens-day-by-promoting-pro-women-constitutional-amendments-a-risky-strategy/