Fábio Grotz & Sonia Corrêa
Abortion is criminalized in Brazil, except in the cases of woman’s life risk, rape and anencephalic mal formation of the fetus. Though the topic is usually spoken about in whispers in daily conversations – and in many social contexts, abortion remains a taboo – clandestine and unsafe termination of pregnancy is widely practiced. According to the National Abortion Survey (2010), 15% of Brazilian women (or one in seven) between 18 and 39 years have performed abortion. Women of all social classes resort to clandestine abortions but, as elsewhere, poor women are the most affected by the harmful consequences of unsafe procedures. Abortion illegality explain why abortion is the fifth leading cause of maternal death in the country whose rates remain higher than the goals internationally set by the MDGs (69 deaths per 100,000 live births).
Although the law is already highly restrictive, the majority of bills on abortion presented to the National Congress in the last decade or so are bluntly regressive, further limiting women’s autonomy and their sexual and reproductive rights. According to a survey performed by the Feminist Centre for Studies and Advisory Services (CFEMEA), around 30 of these provisions propose additional restrictions in the access to abortion, the most stringent of them being the Draft Statute of the Unborn that intends at granting personhood rights to the embryo. If approved, this law will automatically strike down the three possibilities allowed for abortion above listed. As importantly, when compared to the scenario of the 1980’and 1990’s – under the impact of growing conservatism at both societal and institutional levels – the spaces for the debating the legalization of abortion in the public sphere had also been narrowing.
The initiative Two Generations Fighting for the Right to Abortion in Brazil was created by a group of feminists from Rio de Janeiro, in September 2014 after two young women – named Elisangela Barbosa and Jandira dos Santos died in Rio de Janeiro in result of clandestine and unsafe abortion procedures. The case of Jandira was particularly shocking as her corpse was incinerated in order to blur the conditions of her death during the unsafe procedure. This tragic event disclosed how, in the case of Rio de Janeiro, clandestine abortion clinics are now in the hands of criminals who have incinerated her body as to blur her death during the unsafe procedure (read more here and here).
The deaths coincided with the beginning of the 2014 electoral campaign and brought abortion back to the front pages and TV screens, as a wide range of unusual voices came public to express their indignation and express their support to decriminalization. (learn more here and here). However no manifestation of public concern and regret was heard from authorities at federal, state and municipal levels and much less from candidates in the presidential race. The state’s response to these evitable loss of lives was limited to police action aimed at chasing those directly involved in the deaths and closing remaining clandestine clinics in the metropolitan region of Rio.
In order to break through the wall of silence and take out abortion of the criminal sections of the press, the initiative Two Generations Fighting for the Right to Abortion in Brazil launched an online petition calling for abortion to be legalized and addressed as grave public health problem and a non –negotiable women’s human rights. The petition was signed by more than 3.000 people, among them a number of national and international persons with high credibility in various fields, such as the law, medicine, gender studies, the entertainment industry and politics itself.
On March 23rd and 24th, 2015 the initiative held a series of meetings with federal authorities in Brasilia: various ministers of the Supreme Court (STF), including the Chief Justice, the Minister of the Women’s Policy Secretary (SPM) and parliamentarians. The objective of these encounters was to formally hand over the petition these decision makers and publicly express the group’s concern with potential legal and policy regressions in this particular realm. As underlined by Leila Linhares, the coordinator of Cepia and a member of the Initiative: ” The fact that we have been received by officials, including the Chief Justice, Minister Ricardo Lewandowski, indicates that, despite many obstacles, open institutional channels exist through which the dialogue can still flows. Our intention is to fuel the debate from the point of view of sexual and reproductive rights, drawing attention to the perspective of health and human rights. We can not be trapped by the strident performance of conservative sectors”.
Retracing history
The restrictions to abortion presently enshrined in the Penal Code were adopted in 1940, seventy-five years ago. From the early 1980’s on these restrictions would be challenged as claims in respect to women’s health and abortion rights were raised by feminists in the mobilizations that propelled Brazilian democratization, after twenty years of dictatorship. Since then a number of law provisions aimed at legalizing pregnancy termination have been tabled at Congress and, in parallel, successful strategies were designed and implemented to ensure access to abortion services in the cases permitted by law (until 2012, rape and women’s life risk). One decisive moment in this long course occurred in 2004 when the executive branch, responding to the recommendations of the First Conference on Women’s Public Policies, created a commission to study and propose a full abortion reform. In 2005, as the commission finalized its work, the political climate had been taken over by the effects of a major corruption crisis and the administration retreated from tabling the law reform proposal, as it had been originally planned.
Immediately after this retreat, a new and stronger parliamentarian front aimed at defending the ‘right to life” materialized and from there on a series of setbacks have been registered in the realm of abortion realities and policy debates. In 2007, a clinic in city of Campo Grande, in the South West, of Brazil was burst after a TV denounce and medical records of 10.00 women who have used the services in more than a decade were collected by the police. These women were called by the Public Prosecutor Office and compelled to confess that they had used the services to abort and the legal case ended up in a grand jury (see Galli, 2011). Even though in the early 2000’s few women who aborted had been denounced and indicted, the Campo Grande episode marked the beginning of a new era in which women are being increasingly criminalized when resorting to clandestine abortion procedures. (Castro Gomes e Galli) .
Then in 2010 elections, abortion was openly used as an electoral weapon against candidate Dilma Roussef becoming on leitmotif of the campaign. The climate of the campaign was such that before the second round the candidate signed a letter to “people of God” declaring her government would not present any legislative proposal to legalize abortion or same sex marriage (Corrêa; DE LA DEHESA). One first policy measure adopted the Roussef administration was to re-convert the Brazilian Women’s Comprehensive Health Policy internationally appraised since the 1980 into a conventional maternal health program titled Stork Network. In early 2012, a presidential provisional measure was issued that aimed at the universal registry of all pregnant woman, which subtly included an article granting rights to the unborn. After much pressure exerted by the feminist movement the measure was archived. One year and half later, president Roussef sanctioned Law Provision no 12.845 that ensures access to abortion in the cases previewed by law, to the applause of many even when conservative pressures were tremendous. Under these pressures in early 2014, the Minister of Health suspended the technical protocol elaborated to guide the full implementation of the law.
Few positive moments are to mentioned, however, in this period. In 2012, the Supreme Court has finally issued a positive decision in response to a constitutionality complaint presented in 2004 demanding that pregnancy termination the case of anencephaly was included in the exceptions previewed by the Penal Code. In the course of the year a new tentative to reform of Penal Code began under the responsibility of a high level commission of jurists. The Commission, significantly enough, proposed the decriminalization of abortion until the 12th week of pregnancy, whenever a doctor or psychologist asserted that the pregnancy could compromise the woman’s physical or mental health. This auspicious proposition, however, did not survive the review of the draft reform by its rapporteur.
Since then political conditions regarding abortion have become further constrained. As mentioned above, police operations were the only state response to the abortion related maternal deaths that occurred in Rio. More importantly, the composition of the Congress resulting from the 2014 general elections is the most conservative since 1964, when the military coup occurred. The religious block in the House grew by 14 percent when compared to past legislature and its newly elected president, MP Eduardo Cunha is a conservative Evangelic who has systematically spoken against abortion and homosexuality in the course of his political carrier. After taking office in February, he declared that approving the Statute of the Unborn is one of his priorities and a congressman of the religious group re-tabled an amendment calling for the inclusion of the right since conception in the preamble of the Constitution. A similar provision will be also presented at the Senate in this legislature, by an Evangelic senator. This wide attack on abortion rights, it should be noted, does not float freely in the air but it is deeply imbricate with politics tout court. For example, MP Cunha name is on the list of politicians involved in the colossal corruption scandal around the Brazilian oil company currently under investigation and as it also happens elsewhere ‘moral policy issues’ such as abortion are always a good distraction to deflect attention from what really matters.
The timing of the Brasilia events propelled by the initiative Two Generation Fighting for the Right to Abortion in Brazil coincided with these regressive legislative trends. The encounters between the group and executive, judicial and parliamentarian authorities, as reported by the mainstream media, made visible positions in favor of abortion rights by there countervailing growing hegemony of conservative ideologies in this realm. That same week Congressman Jean Wyllys (PSOL / Rio de Janeiro) has tabled law provision 882/2015 that calls for the legalization of abortion. The provision elaborated in conversation with various groups and experts committed to abortion rights encompasses proposals regarding sexual education as well as sexual and reproductive health policies and, most principally aims at make legal the safe and voluntary interruption of pregnancy up to 12 weeks and defines that this services must be provided the Brazilian Public Health System (SUS). The text also reinforces existing legal provisions that ensure the termination of pregnancy in cases resulting from sexual abuse, fetal abnormality and life and health risk to woman that may result from pregnancy.
Contrasting Brazil and Uruguay
Abortion has been legal in Russia since the 1920’s and in Japan since the 1950’s. After the 1960’s pregnancy termination was legalized in number of so-called industrialized countries, as well as Cuba, China, India and Vietnam. [1] In 1994, the Cairo Conference on Population and Development in 1994 adopted a definition of reproductive rights and defined abortion as a major public health problem and, a year later, the 1995 IV World Conference on Women recommended the revision of existing punitive legislation. In the twenty years that followed abortion legal reforms have occurred in a number of countries South of the Equator. This wave has also swept through Latin America where three countries – Chile, El Salvador and Nicaragua – have the most restrictive legislation in the world, which does not even allow for abortion in the case of woman’s life risk.
In 2006 the Colombia Constitutional Court issued a decision that enlarges the access to pregnancy termination, including in cases where the pregnancy may compromise women’s physical and mental health. In 2007, a law permitting abortion up until the 12th week was approved in the Federal District of Mexico. In Uruguay, in 2012, after ten years of sustained legislative battles and social mobilizing – which implied both steps forward and retreats, including a presidential veto – a law was approved that decriminalizes abortion under demand performed until the 12th week of pregnancy, whenever the procedure is done in the public health system and follows the rules established by new law. Finally in March, 2015, President Michelle Bachelet tabled herself at the Chilean Congress the proposal of an abortion legal reform that if approved will allow abortion in the cases of rape, to save women’s life and extreme fetal abnormalities.
As to locate the current Brazilian debate on abortion in the regional policy and legal scenario, the initiative Two Generations Fighting for the Right to Abortion in Brazil invited the senator Constanza Moreira to share the Uruguayan experience at a seminar jointly organized with the Commission on Bioethics and Bio-Rights of the Rio de Janeiro Bar Association (OAB). In the event Senator Moreira retraced the history of the abortion debate in the neighboring country. She began by reminding that the procedure had been decriminalized in 1934 primarily within a public health approach that, at the end of the day, was aimed to reduce fertility amongst the poorer sectors. Then four years later, in 1938, the law was modified as to restrict the possibilities of terminating a pregnancy in cases of rape, risk of death and women’s grave economic necessity. No clear regulation was however defined in relation to how abortion was to be accessed in these cases.
In Senator’s Moreira’s words: “By and large what prevailed was the social certain tolerance in relation to the practice, despite the legal restrictions. Even when cases reached the judiciary, judges were always reluctant to condemn women“. The longstanding and wide acceptance of public health rationales in Uruguayan society favored the social acceptance of the practice of abortion whenever it was sanctioned by medical professionals. In Moreira’s view another key element to be taken into account is deep rooted imprint of secularism and laicité that characterizes the Uruguayan political culture, inaugurated by the 1918 referendum that approved the separation of Church and State. She also mentioned the existence of a consistent program on comprehensive sexuality education as another feature to be considered when analyzing the 2012 abortion legal reform.
Despite these favorable conditions the political and legislative processed leading to the reform was long and complex. As in Brazil, provisions aimed at legalizing abortion were presented to Congress since the early days of democratization. But the debate intensified after 2002 when a new provision on sexual and reproductive health was presented to the House. The Senate voted it in 2004 when it was defeated by a small margin of votes. The proposal was modified and re-tabled in 2007. The law was approved in 2008, but president Tabarés Vasquez vetoed the articles referring specifically to abortion legalization. In 2011, these contents would be re-tabled as an specific law on abortion that was finally approved in 2012.
Although this has not it has not been an easy path, in senator Moreira’s view this winding road is what has ensured support to legal abortion within the Frente Amplio – the ruling political force since 2004 — but also by the medical establishment, members of the judiciary, public universities, unions and religious sectors. The ten years elapsing between 2002 and 2012 have decidedly expanded the support to abortion rights beyond the feminist circles and other abortion advocates who have claimed for these rights since the early days of democratization in the 1980’s .
Another important aspect raise by the senator was that, in the course of this long trajectory, technical and political arguments raised as arguments in favor of legal abortion were multiple and plural. In her own words: “The public health argument was critical in articulating abortion, maternal mortality, teenage pregnancy. It also emphasized that technical possibilities exist to avoid unwanted pregnancy and the negative impacts of unsafe abortion. But juridical and philosophical arguments were also crucial. Firstly, Constitutional premises guarantee the right of all citizens to health. Secondly the constitutional text does not grant the unborn full prerogatives as a subject of rights, so if there is a conflict the woman’s right to life shall prevail. Thirdly, if the state is secular and guided by principles of laicité its actions cannot be guided by particular moralities. Lastly, state exercise of authority over woman’s body without respecting her autonomy limits can be interpreted as violence tout court“.
The law, as it has been approved grants the right to abortion up to 12 weeks of pregnancy, after the woman consults with a doctor, a psychologist and a social worker. She is given five days to ponder on her decision to abort and then accesses the health system once again to receive the medication and instructions. In the case of rape the period is extended to 14 weeks and abortions to save women’s lives and fetal abnormality are regulated by special medical norms. The law includes a clause of conscientious objection but also defines that whenever objection occurs the woman must be referred to another services where the procedure will be made. Medical abortion – or the combination of mifepristone and misoprostol – is the method offered by the public health system for women seeking to terminate unwanted pregnancies. Abortions that do not follow these rules are still considered a crime.
In 2013, anti –abortion groups called for a formal popular consultation that should decide if the law should or not be subject to a referendum. Even when all parties had supported the proposal of the consultation, the outcome was defeat for those who are against the law, as only 9% of voters have participated in poll, far below the 25% minimum required for the vote on the referendum to be considered valid. Data from the Minister of Health informs that since 2012 roughly 8.000 abortion procedures have been performed under the law, no maternal death was registered in the case of legal abortion procedures and there are indicators that the number of abortions may be falling.
The Uruguayan abortion legal reform was made possible because feminist movements and other sectors favorable to abortion rights have been able to garner support and establish coalitions across various sectors in society. This maze of support included key voices within the Frente Amplio who have sustained the legal abortion agenda across time, even when President Tabaré Vasquez exerted his veto on the law approved in 2008. Lastly but not less important, as Senator Moreira underlined, these forces have also been flexible when it has been necessary negotiate the content the law. Most principally, despite setbacks, they have not lost steam. In her view, the law approved in 2012 while far from perfect, must be appraised as the outcome of a long-term political battle in which the voices favorable to legal abortion have never desisted. In her own words: “A lost battle is the one from which we give up“. This trajectory and experience is definitely inspiring for all countries where access to legal and safe abortion remains restricted and in particular for Brazil.
[1] Even though in the cases of China, India, Japan and Vietnam, differently from what happened in Europe or the US, the legalization of abortion has been more directly tributary of population control rationales than of public health concerns and the defense of women’s rights, these early global South reforms must also be taken into account abortion. If nothing else because they have made abortion available to the majority of the world’s women in reproductive age population.