Sexuality Policy Watch

Brazil: New president of the House opens the road for anti-abortion provisions

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

MPs Chris Tonietto and Filipe Barros

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


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)

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