by Angela Freitas and Fábio Grotz
In the midst of the conservative restoration that has swept Brazil in 2016, on November 29th, the First Chamber of the Brazilian Supreme Court – in which five of the eleven judges have a seat – has issued, an unexpected opinion arguing in favor of decriminalization of abortion until the twelve week of pregnancy. Although the opinion is non-biding, and only applies to the case that was considered by the Supreme Court, it nevertheless gives a jurisprudential sign that is unprecedented. On the one hand, it was celebrated by those who support the right to abortion, on the other it was 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 had not committed previous crimes, had permanent work and known residence and did not offered any risk to the public or economic order, neither forewarns 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 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 cases with regard to interruption of pregnancy in the case of anencephaly and stem cell research, it had solidly affirmed that the absolute right to life from conception is not enshrined in the Brazilian Constitution.
At the heart of the November 29th, 2016 Judge Barroso’s vote is the understanding that the fundamental rights of women in the 1988 Constitution make it unconstitutional to criminalize abortion, as defined in the in the 1940 Penal Code which 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 is 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 indicates that the road has been opened for a wider decision to be adopted by the plenary of the Court, which may overturn the abortion prohibitions now enshrined in the Penal Code.
The anti-abortion rights 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 fundamentally an attribution of the legislative. It is worth remembering that this is an overtly conservative legislature, which 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 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) is not exactly a conservative in respect to these matters. But pressured by the anti-abortion rights group he conceded to the quick creation of the Committee because he needs their support of to be reelected. The committee that will be set around a proposed constitutional amendment on maternity leave (PEC 58/11, by Jorge Silva / PHS-ES) will give priority to contests the Court decision.
The House anti-abortion rights groups has then been silent since their leader Eduardo Cunha had his mandate suspended and was, later on, arrested (June- September, 2016). Observers of the Congressional scene evaluate that the group will now use the Supreme Court decision as a diving board 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 minimally ironic, as few years back senator Calheiros was publicly praying to the image of Our Lady of the Conception to avoid his cassation in a corruption case; and is now once again maneuvering to restrain the scope of anti-corruption legislation and to escape his own indictment in the judicial operations underway.
What’s next? – It is impossible to predict the unfolding of this pitched battle over abortion that now appears to divide the powers of the Brazilian Republic. This is another chapter in the saga Abortion and Brazilian Macro Politics, which has been evolving since the 2010 elections. The November 29th decision will certainly reverberate on the first review of the request presented to the Court by the National Association of Public Defendants in partnership with ANIS calling for consistent state responses to the Zika crisis — including access to pregnancy termination in the case of women infected — which still will take place. More importantly, perhaps, the current fracture between powers will open the ground for abortion rights advocates and women at large to – inspired by what happened in Spain two years ago and most recently in Poland — take once again the streets, while at the same time opening spaces for horizontal conversations in societies – in homes, bars, corners, schools and even churches — as the right to have an abortion as a non negotiable topic in the hard labor of democratic re-construction that has just begun.