Sexuality Policy Watch

Gender and Abortion Rights in the Congressional Scene

By Sonia Corrêa

What has been happening, since January,  in the Brazilian Congress regarding abortion rights and gender must be situated in a longer political. The current real or potential setbacks in these two fields are not to be seen simply an effect of the JMB government. Rather, in these domains, the regressive trend, have been underway for some time now.  In that respect, we can say that long-standing and tortuous congressional debates on the right to abortion and on “gender ideology”, which did not have greater public visibility, were the precursors to what would be seen in Brazilian politics after 2018.

Regarding the right to abortion, current regressive trends began to consolidate in 2005-2006, when a legal reform initiative, proposed by the executive, was overrun by the first corruption crisis of the Workers’ Party government. During this, the Anti-Abortion Parliamentary Front was created, opening a breach for the proliferation of regressive bills, whose presentation to Congress intensified after 2015 when the contours of the current conservative restoration, which brings us to today’s scenario, matured.

Anti-gender legislative proposals began to pop up in 2013 when the concept of gender was heavily attacked by parliamentarians and Evangelical, Catholics, and secular groups that called for the “total de-ideologization of public education”  based on the facile idea that education must be neutral. This offensive intensified from 2015 on, when the word “gender” became the subject of repudiation, regardless of the context in which it was employed. Most dangerous legislative initiatives on this matter that are currently under debate at Congress either date back to these early days. They do not advance anything really new in terms of argument and legal substance.  The novelty is that these propositions can now count on the support of the executive and of its parliamentary base and, as it will be seen, a parliamentary climate around that is assuming surreal contours.

The legislative agenda on gender, sexuality, and abortion also needs to be placed in relation to the current conditions and dynamics of the Brazilian Congress. As pointed out by many analysts, while the Brazilian political system suffered devastating effects in the 2018 electoral process, it was already showing signs of exhaustion since 2013. In 2018, the parties that had supported the system since the 1980s – PMDB, PSDB and PT –  saw the numbers of their representatives in Congress reduced while the PSL, a marginal and unimpressive group fueled by the presidential election, was elevated to the second largest political party in the House of Representatives. The election also changed the composition and the play of forces in the Senate. In the post-2018 campaign period, Marcos Nobre already remarked upon the incapacity of JMB and the new government to reorganize the Brazilian political system in such a consistent way as the PT and PSDB did when they were in power.  This, because:

In order to be able to govern, it is not enough to get the necessary votes to approve guidelines and bills. It is necessary that political forces also let themselves be led in some way and to some degree by the agglutinating poles of the government, on the one hand, and the opposition on the other. The system has been destroyed precisely because it no longer has these binding poles.

This prediction has been confirmed since January 2019, when an authoritarian and erratic executive came to depend on Congress to approve its top priority: the pension reform, sold to the electorate as the silver bullet that, as Lena Lavinas points out, would end Brazil’s worst recession in its recent history overnight. The scenario is exacerbated by the fact that the government is authoritarian and opposes itself. It governs, basically, by means of provisional measures, decrees, and has a parliamentary base (the PSL) that, as predicted, is chaotic and not always faithful. Under these conditions, the residues of the so-called “amorphous and malleable core” of Brazilian politics – the center that ensured parliamentary governance in the PSDB and PT eras – are now in charge of Congress.

The tensions between the executive and Congress have been constant and growing, even as congressional leaders claim to be ideologically aligned with the government. JMB has lost some important votes and has seen pension reform (which he hoped to be approved in a single stroke of parliamentary magic) constantly postponed. In its last version, the draft reform has left outside various proposals that were considered nonnegotiable by the finance minister.  Because of those demonstrations of support for the government were called for on May 26. Their results were contradictory. On the one hand, they were not as massive as JMB would expect but have shown that the bolsonarista base is still expressive and willing to go to the streets when needed. On the other, the open attacks made by demonstrators on the political system and the parliamentary leaders have not pleased those who now command Congress. So displeased have congressional leaders become that,  on June 10, while this text was being finalized, the presidents of the House and Senate made the newspapers’ front pages, shaking hands and saying loudly and clearly that JMB “will have to put up with them for the next two years”.

This tumultuous scenario, however, has not prevented the presentation – or re-presentation –  and processing of anti-gender bills and bills restricting the right to abortion, even though the general conditions of Congress and the top priority given to pension reform might delay their progress. This is not surprising since the parliamentarians linked to Bolsonarism must prioritize the moral agendas they have promised to their electoral bases during the campaign promises. In early June, they publicly announced that the government’s “moral agenda” would soon gain leverage in the legislative.

Despite the tumultuous scenario and many risks at play, there is,  something new and promising to report. In this new legislature, there is much more support and energy among the opposition to try containing regressive bills in the realms of gender and abortion rights.  Paradoxically, there is today, for the first time in Brazilian history, a congressional caucus in the Federal House of Representatives that declares itself feminist that resulted from ongoing investments in the presence of a new feminist generation, and especially of black women, in politics. This group positively functions as a counterpoint to the above-mentioned regressions, but also to a new and quite substantive group of conservative women, who were also elected in the wake of JMB. Left-wing or left-center parties and parliamentarians, especially the PSOL and the PT also seem to have finally realized that feminist issues cannot be seen as secondary topics. The battles the feminist group and other allied parliamentarians are fierce.

Right now there are 15 provisions aimed at prohibiting the diffusion of “gender ideology”: seven of them presented by the new legislature. Most of them concern education and are tied to the proposed bills from 2014-2015.  Differently from what was seen in previous legislatures, when these bills were presented without much opposition from the left, two new bills have also been presented that openly oppose their  regressive propositions and are intended to guarantee the free expression of thought and opinion to all teachers, students, and school staff, including with regards to gender and sexuality. On the other hand, however, the anti-gender virulence of these provisions is glaring. Six of them aim at criminalizing the diffusion of  “gender ideology”  and the more recent one (Provision 3492/2019) defines as the penalty for this crime  50 years of imprisonment.

A recent plenary debate is also is symptomatic of the climate that prevails in the House in regard to “gender”. In an article for the online magazine Sul 21, Gabriel Galil described in detail how, at the end of May, the mention of the word “gender” in a law intended to define what data should be inscribed on Social Security forms when a child is born paralyzed the House debates  for several hours:

One of the loudest complainants was Pastor Sargento Isidório, the representative who had gained the most votes in the state of Bahia and who also proudly acclaims his status as a former gay. Holding a Bible in his hand, as he does every day at all times in the House of Representatives, he shouted that there were only male and female sexes, that gender was anything: a table, a chair etc. Glauber Braga, PSOL Representative, even went so far as to say that soon they’ll try to prohibit writing “gender” [also “genre” or “type” in Portuguese] on food packaging… At 11:38 pm, president of the House Rodrigo Maia became angry and said that if there was no agreement, he would rule the session out of order and the President’s pending provisional measures would fall. In other words, the future of the strategy of government was hanging by a thread over an issue of cultural customs.

This foreshadows the ferocious and surreal debates that will unfold once pension reform has been passed, the legislative agenda of Congress has been unlocked, and legislative bills regarding gender begin to be debated. The same applies to bills in the House that seek to restrict the right to abortion. There are a couple of projects at an advanced stage whose contents have been the object of street protests and legislative containment efforts (see compilation): draft bill 5069/2013 (which criminalizes advertising about abortive methods and which may be brought to the floor at any moment); the Statute of the Child (draft bill 478/2007 – which grants citizenship rights to embryos and is awaiting a rapporteur in the Commission for the Defense of Women’s Rights); and Amendment N. 181 (which protects the right to “life from conception”), part of a constitutional amendment aimed at improving maternity leave for mothers of preterm infants and which may be reactivated as part of the amendment.

But in regard to the right to abortion, the Bolsonarista parliamentary base has already made clear what can be expected when the normalcy of the legislature is re-established (if that happens). In a clear alignment with the premise  of right to life from conception, systematically evoked by Damares Alves (the new Minister of Women, Family and Human Rights), Amendment N. 29 (PEC 29/2015), which proposes the inclusion of the right to “life from conception” in the preamble to the Federal Constitution, has been unleashed in the Senate.

Presented,  in 2015,  by Senator Pastor Magno Malta, PEC 29/2015 is under discussion by the Senate Constitution and Justice Commission. It was brought back to the congressional agenda at the beginning of the 2019 legislative period by Senator Eduardo Girão (PODE/CE). The new rapporteur, Senator Selma Arruda (PSL/MT), very quickly drafted an opinion in favor of the text, adding a paragraph to maintain the exception for abortion in cases already defined by the 1940 Penal Code (to protect the life of the pregnant woman and in pregnancy for rape), with a clause insisting upon the formal consent of the pregnant woman, or the person legally responsible, if she is a minor or legally incapacitated. In the first debate of the text in the Constitution and Justice Commission in mid-May, two amendments were added for inclusion in the text, making possible abortion in the case of anencephaly (also already in force in the Brazilian legal framework) which, according to witnesses, provoked internal debates in the anti-abortion group that wants a total ban on abortions. The legislative process on the matter has since been paralyzed.

In any case, this is the bill that has most advanced so far in Congress and one that most endangers women´s sexual and reproductive rights. The amendment contains a trap: it maintains the two exceptions of Article 128, II, of the 1940 Penal Code (which allow abortion in cases of rape and the risk of the mother’s death) because its proponents know very well that society does not want to see these access to abortions fully abolished.  However, if the amendment keeps intact what is already in the law,  what is, in fact, its true goal? Its motivation can be found, perhaps,  in the text that justifies the passage of the amendment, in which the body of women is characterized as a “host.”  That is to say,  the amendment, in fact, aims at curtailing women’s reproductive autonomy. It will also open a wedge in the legal order as to contest the jurisprudence of the Federal Supreme Court in the near future, given that the Court has decided that the right to life is not absolute and that legal protection of life occurs from birth. The experience of countries adopting similar constitutional premises, such as the Philippines (1985) and El Salvador (1997), shows that this juridical definition silences the debate on the right to abortion and opens the door to the absolute and brutal criminalization of the interruption of pregnancy. PEC 29/2015 is possibly the trench where the first and very fierce legislative battle of Brazilian sexual politics will take place in the JMB era.

Translation: Taddheus Blanchette

Image: Natchez, 1985, by Jean-Michel Basquiat


[1] Read here.

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