Decision no. 2017-747 DC of 16 March 2017

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE, under the conditions described in the second Subparagraph of Article 61 of the Constitution, on the Law relating to expanding the offence of impeding access to voluntary termination of pregnancy under number 2017-747 DC. In attendance on 20 February 2017: Mr. Christian JACOB, Mr. Bernard ACCOYER, Mr. Yves ALBARELLO, Ms. Laurence ARRIBAGÉ, Mr. Olivier AUDIBERT-TROIN, Mr. Jacques-Alain BÉNISTI, Mr. Sylvain BERRIOS, Mr. Marcel BONNOT, Ms. Valérie BOYER, Mr. Xavier BRETON, Mr. Philippe BRIAND, Mr. Yves CENSI, Mr. Guillaume CHEVROLLIER, Mr. Jean-Louis CHRIST, Mr. Dino CINIERI, Mr. Éric CIOTTI, Mr. Jean-Louis COSTES, Mr. Jean-Michel COUVE, Ms. Marie-Christine DALLOZ, Mr. Julien DIVE, Mr. Jean-Pierre DOOR, Mr. Dominique DORD, Ms. Marianne DUBOIS, Ms. Virginie DUBY-MULLER, Mr. Daniel FASQUELLE, Mr. François FILLON, Ms. Marie-Louise FORT, Mr. Yves FOULON, Mr. Marc FRANCINA, Mr. Yves FROMION, Mr. Sauveur GANDOLFI-SCHEIT, Mr. Hervé GAYMARD, Ms. Annie GENEVARD, Mr. Guy GEOFFROY, Mr. Alain GEST, Mr. Franck GILARD, Mr. Philippe GOSSELIN, Ms. Arlette GROSSKOST, Mr. Jean-Claude GUIBAL, Mr. Jean-Jacques GUILLET, Mr. Michel HEINRICH, Mr. Michel HERBILLON, Mr. Antoine HERTH, Mr. Patrick HETZEL, Mr. Sébastien HUYGHE, Mr. Denis JACQUAT, Mr. Christian KERT, Mr. Jacques KOSSOWSKI, Ms. Valérie LACROUTE, Mr. Marc LAFFINEUR, Mr. Jean-François LAMOUR, Ms. Laure de LA RAUDIÈRE, Ms. Isabelle LE CALLENNEC, Mr. Marc LE FUR, Mr. Pierre LELLOUCHE, Mr. Pierre LEQUILLER, Mr. Céleste LETT, Ms. Véronique LOUWAGIE, Mr. Lionnel LUCA, Mr. Gilles LURTON, Mr. Thierry MARIANI, Mr. Alain MARLEIX, Mr. Olivier MARLEIX, Mr. Alain MARTY, Mr. Jean-Claude MATHIS, Mr. François de MAZIÈRES, Mr. Gérard MENUEL, Mr. Damien MESLOT, Mr. Philippe MEUNIER, Mr. Jean-Claude MIGNON, Mr. Yannick MOREAU, Mr. Pierre MOREL-À-L'HUISSIER, Mr. Alain MOYNE-BRESSAND, Mr. Jacques MYARD, Ms. Dominique NACHURY, Mr. Patrick OLLIER, Mr. Jacques PÉLISSARD, Ms. Stéphanie PERNOD-BEAUDON, Mr. Bernard PERRUT, Mr. Jean-Frédéric POISSON, Ms. Josette PONS, Mr. Frédéric REISS, Mr. Martial SADDIER, Mr. François SCELLIER, Ms. Claudine SCHMID, Mr. André SCHNEIDER, Mr. Jean-Marie SERMIER, Mr. Fernand SIRÉ, Mr. Michel SORDI, Mr. Claude STURNI, Mr. Alain SUGUENOT, Mr. Guy TEISSIER, Mr. Michel TERROT, Mr. Jean-Marie TÉTART, Mr. Pascal THÉVENOT, Mr. Dominique TIAN, Ms, Catherine VAUTRIN, Mr. Patrice VERCHÈRE, Mr. Philippe VITEL, Mr. Michel VOISIN and Mr. Laurent WAUQUIEZ, Members of the National Assembly.

Also in attendance on 21 February 2017: Mr. Bruno RETAILLEAU, Mr. Gérard BAILLY, Mr. Philippe BAS, Mr. Jérôme BIGNON, Mr. François BONHOMME, Mr. Gilbert BOUCHET, Mr. Christian CAMBON, Mr. Jean-Pierre CANTEGRIT, Mr. Jean-Noël CARDOUX, Ms. Anne CHAIN-LARCHÉ, Mr. Pierre CHARON, Mr. Daniel CHASSEING, Mr. François COMMEINHES, Mr. Gérard CORNU, Mr. Philippe DALLIER, Mr. Mathieu DARNAUD, Ms. Isabelle DEBRÉ, Mr. Robert DEL PICCHIA, Mr. Gérard DÉRIOT, Ms. Catherine DEROCHE, Ms. Jacky DEROMEDI, Ms. Marie-Hélène DES ESGAULX, Ms. Catherine DI FOLCO, Ms. Marie-Annick DUCHÊNE, Mr. Alain DUFAUT, Ms. Nicole DURANTON, Mr. Jean-Paul ÉMORINE, Ms. Dominique ESTROSI SASSONE, Mr. Alain FOUCHÉ, Mr. Bernard FOURNIER, Mr. Jacques GENEST, Ms. Frédérique GERBAUD, Mr. Bruno GILLES, Ms. Colette GIUDICELLI, Mr. Alain GOURNAC, Mr. Jean-Pierre GRAND, Mr. Daniel GREMILLET, Mr. François GROSDIDIER, Ms. Pascale GRUNY, Mr. Charles GUENÉ, Mr. Alain HOUPERT, Mr. Benoît HURÉ, Mr. Jean-François HUSSON, Ms. Corinne IMBERT, Ms. Christiane KAMMERMANN, Mr. Roger KAROUTCHI, Ms. Élisabeth LAMURE, Mr. Daniel LAURENT, Mr. Jacques LEGENDRE, Mr. Dominique de LEGGE, Mr. Jean-Pierre LELEUX, Mr. Jean-Claude LENOIR, Mr. Gérard LONGUET, Ms. Vivette LOPEZ, Mr. Michel MAGRAS, Mr. Claude MALHURET, Mr. Didier MANDELLI, Mr. Jean-François MAYET, Ms. Colette MÉLOT, Ms. Marie MERCIER, Ms. Brigitte MICOULEAU, Mr. Alain MILON, Ms. Patricia MORHET-RICHAUD, Mr. Claude NOUGEIN, Mr. Philippe PAUL, Mr. Jackie PIERRE, Mr. François PILLET, Mr. Rémy POINTEREAU, Mr. Hugues PORTELLI, Ms. Sophie PRIMAS, Mr. Jean-Pierre RAFFARIN, Mr. Henri de RAINCOURT, Mr. Jean-François RAPIN, Mr. Charles REVET, Mr. Bernard SAUGEY, Mr. René-Paul SAVARY, Mr. Bruno SIDO, Ms. Catherine TROENDLÉ, Mr. Michel VASPART, Mr. Alain VASSELLE and Mr. Jean-Pierre VIAL, Senators.

In light of the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Organic Law on the Constitutional Council;
• the Public Health Code;
• the observations of the Government, registered on 7 March 2017;

And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL DECIDED ON THE FOLLOWING:

1. The applicant Members of the National Assembly and Senators defer to the Constitutional Council on the Law relating to expanding the offence of impeding access to voluntary termination of pregnancy. They contest the constitutionality of its only Article.

2.   Section 1° of the only Article of the contested Law rewrites Article L. 2223-2 of the Public Health Code, which defines the offence of impeding access to voluntary termination of pregnancy. These provisions establish that "impeding or attempting to impede someone from obtaining or gathering information about a voluntary termination of pregnancy or the actions leading up to this as described in Articles L. 2212-3 to L. 2212-8 by any means, including electronically or online, specifically through disseminating or communicating allegations or indications, in an intentionally misleading nature, on the medical characteristics and consequences of a voluntary termination of pregnancy in order to dissuade" is punishable by two years of imprisonment and a fine of 30,000 euros:   
   

Section 1° "Either by disrupting access to the establishments mentioned in Article L. 2212-2, the free circulation of persons inside of these establishments, or the working conditions of the medical and non-medical personnel."
Section 2° "Or by exerting moral and psychological pressure, threats or any act of intimidation on persons seeking to gather information on a voluntary termination of pregnancy, medical or non-medical personnel working in the establishments mentioned in the same Article L. 2212-2, women who have come to obtain a voluntary termination of pregnancy or those accompanying them."

3. The applicant Members of the National Assembly and Senators hold that, in the first place, the offence of impeding access to voluntary termination of pregnancy, as it is defined by the contested Law, disproportionately infringes on the freedom of opinion, expression and communication. Secondly, through its unclear and confusing writing, this Law infringes on the objective of constitutional value of accessibility and comprehensibility of the law. Lastly, the contested Law violates the requirements under Article 8 of the Declaration of the Rights of Man and the Citizen of 1789 in two ways: On the one hand, by engendering uncertainty on the elements that constitute an infraction, it infringes on the principle that offences and penalties must be defined by law. On the other, the penalties incurred in this new case of impeding are disproportionate.

• On the claims of infringement upon the principle that offences and penalties must be defined by law and the objective of constitutional value of accessibility and comprehensibility of the law.

4. Article 8 of the 1789 Declaration provides that: "The law shall only establish penalties that are strictly and clearly necessary, and one shall only be punished under a law that has been established and enacted prior to the criminal offence, and that is legally applicable". Pursuant to Article 34 of the Constitution: The law shall establish the rules concerning ... the determination of crimes and offences as well as their applicable penalties". Pursuant to Article 34 of the Constitution, as well as the principle that offences and penalties must be defined by law according to Article 8 of the 1789 Declaration, the legislature is under the obligation to determine the scope of criminal law and to define crimes and offences in sufficiently clear and precise terms to avoid arbitrariness;

5. The objective of the constitutional value of accessibility and comprehensibility of the law, as written in Articles 4, 5, 6, and 16 of the Declaration of 1789, requires that the legislature adopt provisions that are sufficiently precise and unambiguous formulations.

6. The contested provisions punish the acts of impeding or attempting to impede someone from obtaining or gathering information about a voluntary termination of pregnancy or the actions leading up to this by any means. This offence of impeding occurs in two cases: either when access to establishments providing voluntary termination of pregnancy is disrupted, or when moral and psychological pressure, threats or any act of intimidation is exerted on persons seeking to gather information on a voluntary termination of pregnancy, persons working in these establishments, women who have come to obtain a voluntary termination of pregnancy or those accompanying them.

7. The contested provisions from this parliamentary work describe that "disseminating or communicating allegations or indications, in an intentionally misleading nature, on the medical characteristics and consequences of a voluntary termination of pregnancy in order to dissuade" does not constitute one of the means to commit the offence of impeding; pursuant to Sections 1° and 2° of Article L. 2223-2 of the Public Health Code, the infraction only occurs in the case when access to establishments providing voluntary termination of pregnancy is disrupted, or in the case of pressure, threats or acts of intimidation.

8. Consequently, the contested provisions are sufficiently clear and precise that the principle that offences and penalties must be defined by law and the objective of constitutional value of accessibility and comprehensibility of the law are complied with. Thus the claim that they are being infringed should be rejected.

• On the claim of infringement on the freedom of expression and communication:

9. Pursuant to Article 11 of the 1789 Declaration: "The free communication of thoughts and opinions is one of the most precious rights of humanity: every citizen should speak, write, and print freely, except in regard to the abuse of this freedom in the cases determined by the law". Article 34 of the Constitution provides that: "Statutes shall determine the rules concerning ... the civil rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties". Based on this, the legislature has the right to establish the rules concerning the right to exercise free communication and the right to speak, write and print. It also has the right, in this regard, to institute penalties for the abuse of the right to exercise free expression and communication if it infringes on public order and the rights of others. However, freedom of expression and communication is all the more precious in that the exercise thereof is a condition of democracy and one of the guarantees that other rights and freedoms are respected. It follows that infringement on the exercise of this freedom must be appropriate, suitable and proportional to the objective sought.

10. By adopting the contested provisions, the legislature sought to prevent possible infringement on the right to obtain a voluntary termination of pregnancy under the conditions established in Book II of the second part of the Public Health Code. The objective of the contested provisions is also to guarantee the freedom of women as written in Article 2 of the Declaration of 1789.

11. First of all, by punishing expressions and demonstrations that disrupt the access to or the functioning of establishments that provide voluntary terminations of pregnancies, the contested provisions do not disproportionately infringe on the objective of the freedom of expression and communication.

12. Secondly, the contested provisions also punish moral and psychological pressure, threats or any act of intimidation exerted on persons working in establishments providing voluntary terminations of pregnancies, women who have come to obtain one or those accompanying them, as well as persons seeking to gather information. Insofar as they are limited to punishing certain abuses of the freedom of expression and communication committed in establishments providing voluntary terminations of pregnancies or on their personnel, the contested provisions do not disproportionately infringe on the objectives sought by this freedom.

13.   Lastly, the contested provisions punish moral and psychological pressure, threats or any act of intimidation exerted on persons seeking information on a voluntary termination of pregnancy, no matter the person seeking information, the location where this information is provided, and the medium used.   
    

14. However, on the one hand, the act of disseminating information to an unspecific public through any medium, specifically on a public online communication site, cannot be regarded as pressure, threats or acts of intimidation under the meaning of the contested provisions, unless they infringe on freedom of expression and communication. These provisions thus only allow the punishment of actions whose goal is to impede or to attempt to impede one or several specific persons from obtaining or gathering information about a voluntary termination of pregnancy.

15. On the other hand, unless there is an infringement on freedom of expression and communication, the offence of impeding, when it punishes moral and psychological pressure, threats or any act of intimidation exerted on persons seeking information on a voluntary termination of pregnancy can only occur on two conditions: either by seeking information only, and not an opinion; or that this information pertains to the conditions under which a voluntary termination of pregnancy is performed or its consequences and that it is provided by a person who has or claims to have qualifications in the subject.

16. According to the two cases described above, the contested provisions do not infringe on the objective of freedom of expression and communication. Thus the claim of infringement on this freedom should be set aside.

• On the claim of infringement on the principle of the proportionality of penalties:

17. Article 8 of the Declaration of 1789 states that, if it is necessary to inflict penalties related to an infraction under the legislature's power of assessment, it falls on the Constitutional Council to ensure that there is no manifest disproportionality between the infraction and the penalties incurred.

18. Given the nature of the behaviours punished by the contested provisions, which seek to prevent the possible infringement on the freedom of women, the penalties sought by the legislature of two years imprisonment and a fine of 30,000 euros are not manifestly disproportionate. The claim of infringement on the principle of the proportionality of penalties should be rejected.

19. It follows from the foregoing that, subject to the conditions in Paragraphs 14 and 15 of the only Article of the contested Law, which does not infringe either on freedom of opinion or on any other constitutional requirement, should be deemed constitutional.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - Subject to the conditions in Paragraphs 14 and 15, the Law relating to expanding the offence of impeding access to voluntary termination of pregnancy is deemed constitutional.

Article 2. - This decision shall be published in the Journal Officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 16 March 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Valéry GISCARD d'ESTAING, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Announced on 16 March 2017.