By Thais Rodrigues and Edson Sardinha*
Brazilian conservative and extreme -right parlimentarians are planing to take advantage of the new presidency of the House, MP Arthur Lira (from the Partido Progressista) to push through with their anti-abortion propositions, which had been shelved by the former president, MP Rodrigo Maia (Democratas). Having been supported in his election by the House Evangelical group and the Parliamentary Front against Abortion and in Defense of Life, Lira will face much pressure on their part to open the way for tougher legislation against abortion to be adopted. This agenda, however, faces resistance in other quarters of the Congress.
Congresswoman Chris Tonietto (Partido Social Liberal), says that Lira has pledged to support the agenda advocated by the Parliamentary Front against Abortion and in Defense of Life. During the campaign for the presidency of the House, Tonietto delivered to the leader of the voting bloc known as ‘Centrão’, to which Lira belongs, a formal demand for the new presidency to fight against all matters related to gender, sexuality, family, and abortion rights that go against conservative values. “The constitutional and sacred right to life must be defended at all costs and at all times, by all and for all, to preserve the life of both the born and the unborn,” says an excerpt from the demand, to which Congresso em Foco had exclusive access. The document also heavily criticizes the Judiciary that, according to Tonietto is aligned with MPs, senators and parties favorable to women’s right to decide: “With this notable advance of judicial activism, we see a growing attempt to constrain the Legislative to approve what has already been tirelessly defeated. This is the imposition of an agenda that does not represent the majority’s values of Brazilian society” is another affirmation of the text.
Sought by Congresso em Foco to comment on his colleagues’ statements, the House president dodged. “All projects tabled to the House of Representatives will be brought to vote, whenever they have a majority in the college of leaders or are matured enough in the society”, replied Lira through his cabinet.
The anti-abortion strategy of the Bolsonaro camp
Since 2019, jointly with the U.S., Brazil became part of a group of 30 countries, led by Trump, Bolsonaro, and Viktor Orban, that signed the so- called Geneva Consensus calling for for the defense, at all costs, of the traditional family and promoting anti-abortion positions. The text of the Consensus also contest the legitimacy of international agreements of these matters alleging that they “interfere with national sovereignty.” After, Donald Trump’s electoral defeat, a former high level officer of his administration has made clear that Brazil will now become the new geopolitical leader in the promotion of the ultraconservative agenda, launched by the US under Trump.
It is not, therefore, a surprise that lawmakers who support Jair Bolsonaro are now running fast with this agenda at Congress level, as this may ensure consistency between the Foreign Policy positions and national legislation. On February 4th, three days after the election of Arthur Lira, Congresswoman Carla Zambelli (PSL) tabled a bill (PL 232/2020) that makes it mandatory for women requesting abortion in the case of rape to present an police report signed by an official medical examiner that attests to the veracity of the rape. The proposal underscores the content of Ordinance N. 2282, of the Ministry of Health, released in August last year, which generated strong reactions in Congress and civil society. Besides requiring a police report to authorize a request of abortion in the case of rape, Ordinance N. 2282 includes the requisite of two additional procedures: the woman must see an ultrasound of the fetus and submitted to the loud reading of a list of risks resulting from a legal abortion procedure.
A record number of anti-abortion bills
The number of anti-abortion law provisions tabled in Congress ,since the beginning of the Bolsonaro administration, has skyrocketed. Between 2019 and 2020, 43 provisions were presented that advance harsher laws against the existing ground for pregnancy termination. According to the Center for Feminist Studies and Advisory Services (Cfemea), which monitors public policies involving women’s rights, this number equals the totality of legislative propositions on the subject presented in the House between 1995 and 2018 (although the graphic is in Portuguese it shows how the number of provisions sky rocketed since 2018).
Despite this flurry of proposals, the current Congress, which has the most conservative compositions in the country’s recent history, had not until 2021 taken string steps in regard to these proposals. This is so because Rodrigo Maia, who was President of the House between 2016 and 2021, has always declared himself contrary to this draconian anti-abortion agenda. It is also worth noting that limiting abortion was not included in the list of priority proposals presented by the Presidency to the heads of the House and Senate at the opening of the 2021 legislative year.
Even so the Bolsonaro camp in Congress is strongly pushing for this agenda. With the election of Lira, the anti-abortion group is convinced that the 2021 scenario will be very favorable for them. This is the view, for example, of the already mentioned MP Chris Tonietto but also of MPs Garcia (Podemos), Cezinha de Madureira (PDS), and of Senator Eduardo Girão (Podemos), all of them known for their adamant position against abortion rights.
“We are 100% Arthur Lira and he has made an agreement with us,” says Cezinha de Madureira, president of the Evangelical Parliamentary Front. He also affirms that “conservative pro-life” agendas are a government priority: “The Parliament will do everything possible for proposals that value life to be approved”. For the president of the Parliamentary Front for the Defense of Life and Family, congressman Diego Garcia, the conservative profile of Congress makes it impossible to expand abortion rights in this legislation. “The topics related to the protection of the life of the woman and the unborn child will be a priority and, for sure, a large part of the Parliament will be in favor”, he says. According to him, the push for stricter legislation against the interruption of pregnancy should only gain impetus in the second semester. “What is prevailing in the government agenda right now is economics and health (COVID 19)”. Some bills, however, he also says, may advance in the second half of the year.
Main anti-abortion voices at Congress
Elected with the support of Brazilian ultra- Catholics, MP Tonietto, who is 29 years old, authored 11 of the 43 proposals on abortion that were presented between 2019 and 2020. She has very radical views on the matter. For example, she presented draft bill 2893/19 that aims at totally repealing article 128 of the Penal Code that defines the two grounds upon which abortion is permitted by law: to save the pregnant woman’s life; and abortion in the case of pregnancy resulting from rape (abortion in case of anencephaly was granted through a Supreme Court decision of 2012). The bill was introduced in May 2019, but remained shelved in the desk of Rodrigo Maia. Tonietto considers that: “For many people, this is a radical bill. But, in my view, it just proposes the obvious”. According to her, Brazilian law. “without any doubt” provides for the right to life since concpetion: “You can’t murder a baby in its mother’s womb”. Tonietto syas that that her bill, despite revoking an article provided in the Penal Code, is not unconstitutional. “In fact, article 128 of the Criminal Code itself is unconstitutional for not guaranteeing the right to life for these babies. My bill is only correcting its unconstitutionality,” she affirms.
In the Senate, one senator is strongly identified with the anti-abortion agenda, his name is Eduardo Girão (Podemos). He presented a bill that intends to increase the punishment for those who assist in the interruption of pregnancy. One of Girão advisors is the former MP Bassuma, who left the PT during the Lula administration because he opposed he party’s positions on abortion rights. As a congressman, Bassuma authored of one of the most polemic propositions on the matter, the so-called Statute of the Unborn Child. The Statute, co-authored with former MP Miguel Martini defines that human life begins at conception. Besides prohibiting abortion in any circumstance and classifying it as a heinous crime, the provision also defines the the rapist as the “father” of the unborn and includes a clause that makes the perpetrator responsible for paying alimony to the victim. This clause led this particular provision to be nicknamed the Estuprobrás (Brazrape), evoking the name of the Brazilian giant oil company.
The international landscape
Countries in relation to which Brazil had close strategic political and economic partnerships is the past have moved in very different direction. In the early hours of December 30, 2020, Argentina passed a new law that decriminalizes and legalizes abortion until the 4th week of pregnancy. President Alberto Fernández had promised to table this bill during the electoral campaign, after a similar proposition was rejected by the Senate in 2018. The other countries in Latin America that legalized abortion are Colombia (2006), Cuba (1965), Uruguay (2012) but also two states in Mexico, the Federal District and Oaxaca.
Then in January 2021, with the arrival of Joe Biden to the White House, the Bolsonarist anti-abortion agenda may find itself constrained. As one of its first measures, the U.S. government suspended the so called Gag Rule that blocked access to US international cooperation funds of organizations that advocate for abortion rights. The Biden- Harris government has also committed full support to free access to reproductive health worldwide, abandoning the so called Geneva Consensus.
Biden’s new reproductive health and rights policy will probably widen the horizons of global policies on gender, health, and reproductive rights. Cfemea’s technical advisor, Jolúzia Batista, considers that, in this new scenario, Brazil will become increasingly isolated if it remains aligned with countries dominated by ultra-conservative governments, such as Honduras, El Salvador, Nicaragua, and the Dominican Republic. These are the four countries in Latin America where abortion is completely forbidden: “Brazil is becoming more and more isolated. The movement now underway at Congress level is very dangerous. It shows how extreme right-wing politics has gained space in our country” , evaluates the specialist.
At the trenches
According to Cfemea, the majority law provisions currently being processed by Congress in relation to abortion negatively affects women’s rights. Just one propositions envisages decriminalization. It was authored by former congressman Jean Wyllys (PSOL) who resigned from his mandate in 2019 and evaded the country after being subject to fierce political persecution and death threats because of his advocacy in favor of human rights, LGBT+ and women’s rights in particular. “There are even bills related to assisted reproduction that are extremely regressive”, Jolúzia points out.
“Today, the dominant discourse today in the progressive field is to support right to reproductive planning, but not exactly reproductive rights. This regression,it should be said, did not start now under Bolsonaro. It t began in the early days of Dilma Roussef administration. Since then, the conservative Evangelical and Catholic groups in parliament began to exert increasing pressure on the Executive branch and the governmental Congress basis. This has brought us to where we are today”, says the expert.
In addition, she says, in the last few years, a sharp deterioration has been observed in the realm of sexual and reproductive health policies, such as in relation to the access to contraceptives, awareness campaigns on sexuality, and even the right to reproductive planning. In Jolúzia’s assessment, when the left was in power at the federal level, it has unduly submitted itself to pressures of conservative forces. “For example, in 2013, as soon as an excellent law to protect the victims of sexual violence was passed, the groups opposing abortion presented several bills calling for its its revocation and at the end the Ministry of Health has ceded under their pressure and never implemented the law properly “, she exemplified.
In the assessment of Senator Mara Gabrilli (PSDB), the core of this debate has been totally ignored by Congress: “What we should be debating is women’s health. In Brazil, abortion is performed clandestinely, with precarious and dangerous methods. In other words, the agenda should be public health. This should be the Parliament’s view on the issue, regardless of ideologies. The issue is complex, involves lives, and needs to be widely debated.”
Harm reduction
MPs Áurea Carolina and Sâmia Bomfim (PSOL) also consider that the current environment is very refractory to the decriminalization of abortion. The moment, according to them, requires strong effort of “harm reduction” In other words, it is necessary to resist and contain proposals that aim at toughening abortion legislation. According to Aurea Carolina, who is the leader of the Anti-Racist Feminist Parliamentary Front: “It is difficult for us to table propositions to ensure full abortion rights that may prosper, because we are in the minority. So, our task is to make our best to contain these setbacks “,
Sâmia’s view is that it is hard to move forward towards woman’s right to decide, because of moral views and taboos that still prevail in Congress discussions on the subject. For her, as to overcome these obstacles, it is also important to intervene in the key spaces of female representation in Congress. This is so because: “The Women’s Secretariat [of the House] will also change its structure as of March, and there is always the risk that the government may use its bargaining power to also control this space, at the expenses of women’s rights”, she says.
The persistent back and forth
The abortion-rights agenda has always been traversed by controversies in National Congress debates. The matter was a heated topic during both Fernando Henrique Cardoso and Luiz Inácio Lula da Silva administrations. During the first PT mandate (2003-2006), the then Minister of Health, Humberto Costa, extended revised the MoH Protocol that guides health care provided by legal abortion services in the public health system, eliminating the requirement of a police report for authorizing abortions in cases of rape. Then in December 2004, Lula signed the National Plan of Policies for Women, emerging from a national participatory conference, which was to become the main policy guideline of the recently created Special Secretariat for Women’s Policies of the Presidency of the Republic (SPM/PR). This Plan provided guidelines for ensuring gender equality and the respect for bodily autonomy, was committed to expanding reproductive health and planning and, inspired by the Beijing Platform of Action, called for the revision of abortion punitive legislation.
In December 2004, the head of Secretary (minister Nilcéa Freire) installed a special tripartite commission – involving the Executive and legislative branches and civil society organizations – to discuss and propose a revision of the abortion articles of the Penal Code. The commission recommended abortion to be decriminalized and legalized up until the to the 12th week of pregnancy. The then-president Lula declared that he would not take a position on the matter but would release the vote of the government Congress basis. This looking forward proposal, however, ended up buried amidst the first corruption scandal of the sequential PT governments, the so called ‘Mensalão scandal’ that fully absorbed Administration’s energies, from mid 2005 onwards. This was exactly when the Parliamentary Front against Abortion and in Defense of Life was created. In subsequent years, as conservative religious bloc in Congress expanded, similar proposal never returned with the necessary sthrenght to the Congress agenda and anti-abortion rights provisions began proliferating.
Then in 2015, the Secretary for Women’s Policy has lost status and funding, to then been downloaded under the Ministry of Women, Family and Human Rights, created by the Bolsonaro government, which is headed by the pastor Damares Alves, international known for her drastic position against “gender and in defense of the so-called traditional family and the “right to life from conception”.
Sexual violence and abortion rights
Brazilian policies and state police power in relation to abortion in the case of rape gained great repercussion in 2020, when in August, the third Minister of Health of the Bolsonaro government published Ordinance N. 2,282 that compels the abortion legal services health providers to notify the police when rape victims request a pregnancy termination. This ordinance was published two weeks after a case involving a ten-year-old child who was pregnant as a result of having been raped by her uncle, which shocked the country. A press clipping prepared by the joint project between the Sexuality Policy Watch (SPW) and Cfemea shows that the majority of press reports and articles that treated the case, over 57 days of repercussion, were largely in favor of the interruption of pregnancy, as recommended by the 1940 Penal Code. A portfolio (in Portuguese) prepared by the feminist campaign Nem Presa Nem Morta also compiled dozens of statements by NGOs, professional associations, legal institutions and parliamentarians severely criticizing the Ordinance.
In the House of Representatives, four decrees were presented to halt Ordinance N. 2282, all of which were elaborated by a group of left opposition t parties. The reaction of MPs, political parties, as well as of CSOs, led the Ministry of Health back down from its original proposition. The previous text was replaced by a new rule baptized by the feminist movement as “Trojan Horse” because, although the term “obligatory” was been removed, the content of the new Ordinance issued by the Ministry of Health, has kept intact the orientation for health providers to report to the police the cases in which there is evidence of sexual violence.
Moreover, a number of lawsuits were also presented to the Supreme Court. One of them, jointly authored by left opposition parties – (PT, PC do B, PSB, PSOL and PDT — argues for the suspension of the norm and demands that the right to interrupt a pregnancy in case of rape be guaranteed without any embarrassment. Another, presented by the Brazilian Institute of Health Organizations (Ibross), contests the criminalization of the victim. The Supreme Court was to judge these demands t in September 2020, but the rapporteur, Minister Ricardo Lewandowski, removed the cases from the agenda and asked the parties and institutes that question the rule to manifest themselves about the changes made by MoH. The reality is, howeveer, that these demands have been buried under other legal emergencies related to the tragic escalation of the COVID 19 pandemic in Brazil. Until March, 2021, when a new abortion rights urgency was already materializing at Congress, no dates had yet been set by the Court to debate the Ordinance.
What is to be expected
Assessing this troubled scenario, Senator Humberto Costa (PT) is convinced that the goal of the conservative forces is not only to block proposals for decriminalization or legalization: “What they want is to overthrow existing legislation whose proper implementation resulted from a persistent struggle to guarantee the right to legal and safe abortion in Brazil,” says the senator, who is also a doctor.
According to Sônia Malheiros, from the Cfemea team, for a long time conservative forces have been using a very diverse array of strategies to block abortion rights. She mentions, for example, constitutional amendments that had been tabled since 2015, which aim to enshrine in the Constitution “the right to life from conception”. She remind that this premise was vigorously discarded in the 1980s Constitutional Reform. “We cannot can allow this premise to be included in the Federal Constitution”.
Sonia Corrêa, coordinator of the Sexuality Policy Watch, also considers it is critical to recognize that the unfavorable congressional climate in relation to abortion right is not new, but goes far back in time. On the other hand, in her view, quite evidently this climate has worsened since 2019. She also underlines that this dynamics is unequivocally affected by the global climate mobilized by the Trump administration in relation to this agenda, since 2017. According to her, even when the result of the US elections may quickly change the global scenario in relation to abortion rights, this may not automatically imply that the conditions of the Brazilian debate will automatically change . In fact, she thinks, the opposition to the right to abortion may intensify. She agrees with Senator Humberto Costa that the goal of the forces opposing abortion rights is to exclude all existing legal grounds from the Brazilian legislation. “They want to legally impose the absolute prohibition of the practice, as was done in Nicaragua, Honduras and El Salvador, remembering that in the latter country there are women today sentenced to more than 20 years for miscarriages,” she says.
She also remarks that the stark position of anti-abortion forces does not exactly reflect the sentiments of Brazilian society. A survey published in November 2020 reports that “for 88% of women and men interviewed, every city should have a health service in which girls and women who are victims of rape can safely terminate their pregnancy in a public service, as provided for in the legislation”. Even so, when this article was being translated and up-dated, in the week of March 15th, a provision titled The Statute of the Pregnant Woman, authored by the above mentioned Senator Girão began to be processed at high speed at the Senate. The proposal is viewed by feminist legal experts as another Troy Horse, which utilizes the argument of women’s health protection to bluntly attack abortion rights. The predicted assault on women’s reproductive autonomy has, therefore, began.
* This article was originally published in Portuguese on media outlet Congresso em Foco. It was translated by the SPW team,revised and up-dated by Sonia Corrêa
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Main image: Feminist vigil in front of CISAM, the hospital in Recife where the ten years old girl from Espírito Santo has undergone the abortion procedure (August, 2020)