In the midst of the conservative restoration that swept Brazil in 2016, the First Chamber of the Brazilian Supreme Court, where five of the eleven judges have a seat, issued on November 29 an unexpected decision, which argues in favor of the decriminalization of abortion until the twelve week of pregnancy. Though the decision is non-biding — it just applies to the case that was considered by the Court — it sets a historical jurisprudential precedent. It has been celebrated by the democratic camp that supports the right to abortion and immediately attacked by the anti –abortion rights group in the House of Representatives.
What was the decision about? – In August 2016, Judge Marco Aurélio Mello granted a habeas corpus determining the release of five professionals accused of illegal abortion at a clinic in Duque de Caxias, a city neighboring Rio de Janeiro. The habeas corpus was granted on the understanding that the defendants have not committed previous crimes, had permanent work and known residence, and did not offered any risk to the public or economic order, neither threats a criminal investigation. Another minister, Luis Roberto Barroso, however, requested an extended opinion, which was delivered on the 29th, and his vote was accompanied by two other Judges, Rosa Weber and Edson Fachin.
Barroso’s extended opinion went beyond sustaining the HC to wove a thorough argument in defense of the decriminalization of the abortion until the 12 weeks of pregnancy. The argument is aligned with the sexual and reproductive rights and women’s autonomy framework, sustained for many decades by the feminist movement. This was the first time the Court expressed a comprehensive position on abortion rights. Four years ago, when judging constitutional inquiries in regard to interruption in the case of anencephaly and stem cell research, it has affirmed that the absolute right to life from conception is not enshrined in the Brazilian Constitution.
At the heart of Judge Barroso’s vote is the understanding that the fundamental rights of women provided for in the 1988 Constitution make it unconstitutional the criminalization of abortion, as defined in the in the 1940 Penal Code, is still in force today. According to Judge Barroso, while the potential life of the fetus is “obviously relevant,” the criminalization of abortion before the end of the first trimester of pregnancy violates several fundamental rights of women granted by the 1988 Constitution: personal autonomy, physical and mental integrity, sexual and reproductive rights and gender equality. The opinion also refers to racial inequality and discrimination and considers that the law as it does not sufficiently observe the principle of proportionality necessary for the fair application of criminal justice.
The decision does not decriminalize abortion – The decision does not mean that abortion has been decriminalized in Brazil. But it establishes a jurisprudence that can be followed by other magistrates in the country in similar cases. However, a number of observers consider that this manifestation by three Supreme Court ministers in favor of the decriminalization of abortion is a string sign that the road has been opened for a larger decision to be adopted by the plenary of the Court, which may overturn the abortion prohibitions now grafted in Penal Code.
The conservative reaction – As soon as the news of the decision were made public, the House of Representatives created a committee with the purpose to contest the judgment as a breach of interference by the Court in a matter that is the “attribution of the legislative”. It is worth remembering that this is an overtly conservative legislature that has been openly attacking abortion rights since it began in 2015 and that a number of regressive bills are pending of final voting including the nefarious provisions that grant the rights to the unborn (Statute of the Unborn) and make abortion a crime heinous and punishable in any circumstance. The president of the House Rodrigo Maia (DEM-RJ), who is not exactly a conservative in respect to these matters, was pressured by the dogmatic religious group and conceded because he needs their support of to be reelected. The committee will use the opportunity of a proposed constitutional amendment on maternity leave (PEC 58/11, by Jorge Silva / PHS-ES) to address the Court decision.
The group opposed to abortion has been silent since when their leader Eduardo Cunha had his mandate suspended and, later on, was jailed. Observers of the Congressional scene consider that the group will use the attack on Supreme Court decision as window to reactivate the processing of the various projects aimed at restricting access to abortion. On the other hand, however, the Senate President, Renan Calheiros, negatively reacted to the proposal made by the anti-abortion group and openly supported the decision of the Court. This is sort of ironic, because few years back senator Calheiros was publicly praying to the image of Our Lady of the Conception to avoid cassation and now is involved in maneuvers to restrain the scope of anti-corruption legislation.
It is impossible to predict the unfolding of this pitched battle over abortion that now appears to divide the powers of the Brazilian Republic. But we can decidedly say that this is another chapter in the soap opera “Abortion and Macro Politics” that has been evolving since the 2010 elections (learn more here on the scene during 2014 elections). More importantly, perhaps, the battle is an opportunity, inspired by the Spain and more recently in Poland examples, for feminists and women at large to take the streets and also to open horizontal conversations in the houses, bars, corners, schools and churches on the right to the abortion as a key subject in the current agenda of democratic re-construction.