The Arizona Supreme Court's April 9 decision upholding the state's ban on abortion – unless the mother's life is at stake – provides an opportunity to take stock of the issue in the United States as a whole, and to draw a comparison with the situation in France. France has, indeed, just amended its constitution to language saying: "The law determines the conditions under which the freedom guaranteed to women to have recourse to a voluntary termination of pregnancy is exercised."

While we can only welcome the elevation of a woman's freedom to terminate her pregnancy to constitutional status, the scope of such recognition is open to question, given that the effective access to this right is so dependent on the material conditions under which it can be accomplished. All that can be deduced from this is that, from now on, neither the legislative authority nor any court will be able to suppress this right, but its scope will remain as fragile as ever, unless the courts set out to give this new freedom a more substantial content.

A timid reform

Despite the undeniable progress that such a constitutional enshrinement implies, it would not be accurate to say that France is the only country to have taken this path. It's quite common to portray the US as a country that has definitively regressed after the Dobbs ruling, which ended the federal constitutional protection of the right to abortion, and the Arizona decision would seem to lend credence to this thesis. Yet this assessment doesn't do justice to the complexity of the situation today, as the US is engaged in a state-by-state battle that could even lead to a more favorable situation than that which had previously existed.

Alongside states where abortion is prohibited, there are currently two methods being used to constitutionally protect the right to abortion. Firstly, through litigation, civil society has challenged all abortion bans and, in some states, has succeeded in obtaining confirmation of the constitutional status of this right (for example, in Montana, North Dakota, Minnesota, Illinois, Kansas, Florida, Alaska, Massachusetts, New Jersey and Mississippi).

Constitutionalization has thus been achieved in these states through case law. On the other front, other states have taken the path of enshrining the right to abortion in their constitutions, even before France; and, in general, they went much further than France did. We would like to outline the various elements here, to show just how timid the French reform is. Even beyond the protection of abortion, it is the reproductive freedom of each individual that is being constitutionalized on the other side of the Atlantic.

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