By Sonia Corrêa
Since 1940, Brazilian law has permitted abortion in cases of rape, and sexual intercourse with persons under 14 years old is automatically defined as rape. In 1999, the Brazilian Ministry of Health’s issued the Technical Protocol orienting Care for Victims of Sexual Violence (MoH Protocol), considered by WHO as a main global reference for sexual and reproductive health policies. Though revised in 2005 and 2012, its content has not been substantially altered.
On August 8th, 2020, the Brazilian press reported the case of a 10-year-old girl who became pregnant after being raped by her uncle, who lived with her, and her grandmother in the municipality of São Mateus, state of Espírito Santo (neighboring Rio de Janeiro). After suffering from abdominal pains, the girl was taken to a local hospital. She told the medical team that she had been abused since she was 6 years old. She never reported the abuse because the perpetrator threatened to kill her. The doctor who screened her established that the pregnancy was over 20 weeks. Instead of writing a medical report and referring her to a health care service that provides abortion in cases permitted by law (of which there are two in Espírito Santo), the doctor placed her in state custody. As soon as the case became public, the Minister of Women, Family and Human Rights, Damares Alves, – a pastor known for her radical opposition to abortion, including in cases of rape – declared that she would “help the girl and her family”. Subsequently, two high-level staff members of the Ministry traveled to São Mateus to speak with local authorities.
Given that the girl was under custody, her case was to be decided by the local Juvenile Judicial System. The prosecutor took evidence from both the girl and her grandmother, declaring they wanted the pregnancy terminated. As shown by private images circulating on the internet and in later press reports, even before the abortion authorization was issued, the girl’s family was violently coerced by local conservative Catholics, in particular a man who is running as a candidate in the upcoming municipal elections (November 2020).
On Monday, September 21st, newspaper Folha de São Paulo published an article with proof that Minister Damares Alves did everything possible to prevent the abortion procedure. The Ministry’s two high-level officials who visited São Mateus tried to persuade local authorities so the girl would carry the pregnancy to term, even offering to deliver the baby in a hospital in the State of São Paulo and also benefits for the institutions, such as the purchase of a vehicle for the Social Services Agency. According to the investigation, when these attempts failed, the stealthy information about the case would be leaked to the anti-abortion movement (see below).
After the procedure’s judicial authorization was issued, the State Health Department requested the girl be transported to the state capital, Vitoria, so that the procedure could be performed at the Federal University Hospital (HUCAM), which hosts one of the state’s legal abortion services. On Saturday, August 15th, after screening the girl, the HUCAM medical staff declared that the abortion could not be performed because the pregnancy was over 22 weeks. The technical note issued by HUCAM referred to the MoH Protocol, which establishes 22 weeks of pregnancy as the limit for abortion in the case of rape. However, as noted by various legal and medical experts, this limit is in contradiction with the 1940 Penal Code and does not take into account the technological advancements in medical abortion procedures since the 1940s.
In the face of this obstacle, the Espírito Santo State Health Department (SESA) searched for alternatives in other states’ public health systems. The case was accepted by CISAM, a health unit in Recife, Pernambuco’s capital, run by a state-level university (UEP) integrated with the Public Health System (SUS). CISAM hosts one of the oldest and better qualified legal abortion services in Brazil. In 2009, it performed an abortion procedure in a very similar case on an 11 years old girl. On this occasion, anti-abortion voices also created an uproar and the local archbishop publicly excommunicated the medical staff that performed the procedure.
On the early morning of Sunday the 16th, the girl, accompanied by her grandmother and a SESA social worker, flew to Recife with all costs covered by the public health system. Up until that point, the case was under the protection of the justice system and was kept confidential. Somehow, however, through channels that are now being investigated, substantial information about the case was leaked to the public. Even before the girl landed in Recife, a well-known anti-abortion activist posted the victim’s name on social media and the city to which she would travel, calling on anti-abortion forces to do everything possible to stop the procedure. [1]
When the girl arrived at CISAM, a group of ultra-Catholics anti-abortion activists, accompanied by Evangelical state-level parliamentarians, were gathered in front of the hospital. To avoid harassment, the girl was placed in the luggage compartment of the van transporting her, which entered the health unit through a side gate. Meanwhile, the hospital director tried to open dialogue with the anti-abortion crowd, while they shouted that he was a murderer. Until late in the evening, the group remained at the door of the hospital praying. Across the street, local feminist groups also conducted a vigil to support the girl, the judicial decision, and the medical staff. As reported by El País, even when there were security measures on place, the girl, her grandmother and her caseworkers were harassed by two doctors (one female) inside the hospital. These health care professionals managed to enter the girl’s room and described the abortion procedure to her in accusatory terms.
Despite this series of obstacles, the criminal leak of confidential information, and the horror show promoted by anti-abortion groups in front of and inside the hospital, the girl’s pregnancy was terminated without any major health complications and, on August 19th, the patient flew back to her home state. While she had been away, the local judiciary, assessing the level of harassment experienced by the family, concluded that they would not be safe in São Mateus. The girl and the family have, therefore, been included in a public protection program for persons menaced by state and non-state actors. They will be confidentially moved to another city.
This means that, in 2020 Brazil, a very complex and costly political and logistical operation was required to ensure the implementation of an eighty years old abortion law. Even more appalling, the lives of the girl and her family remain at risk and had to be radically altered, simply because her fundamental rights to personal dignity and bodily integrity were respected.
An unexpected political turn?
The case tells much about the gigantic obstacles Brazilian women and girls face in accessing abortion in case of rape. Even though this access has always been complicated, institutional and political barriers have escalated since last year as the official position of the Bolsonaro administration has been the draconian prohibition of abortion, regardless of law or circumstances. However, the case can also be read as a success story and it may mean a new turning point in the long and winding road of abortion rights struggles in Brazil.
As mentioned above, despite barriers and threats, the girl’s rights and health were respected and protected. These positive outcomes would not have been possible if the local judiciary and public health authorities in Espírito Santo and Pernambuco had not responded immediately and impeccably, strictly following the law and resisting pressures from all sides. No less importantly, the various judicial and policy steps through which the case was processed were closely followed by feminists and a wide range of abortion rights advocates, especially law and health professionals. As the process evolved, other key public institutions, and most particularly society at large, also responded positively to the girl’s plight.
Since August 10th, feminist and other pro-abortion rights actors have successfully engaged in digital mobilizing. Right after the case became public, a petition on Change.org was launched by the feminist collective Sangria Coletiva, calling for the rights of the girl to be respected. This rapidly collected 680,000 signatures. On Sunday, August 16th, the leak of confidential data was widely repudiated and a digital campaign began immediately, successfully taking down social media sites of the anti-abortion activist who publicized the leak. A lawsuit was then filed by the Espírito Santos’s State Public Defender and, as a result, all digital platforms were requested to delete personal information about the girl, her family, and the judicial and medical documents related to the case. The suit also requested financial compensation for the leak, to be invested in the local children’s rights protection fund.
Mainstream media coverage of the case was strikingly supportive. According to a survey by Cfemea and SPW, 339 articles and op-eds related to the case were published between August 10th and 23rd. Roughly 50 percent of them were “favorable” to the girl’s abortion rights (162) and the majority of these were published by the mainstream media. Another 143 pieces of writing were neutral or informative/descriptive. Only 18 opposed the girl’s rights and criticized the final outcome of the case. Key digital influencers came out publicly in favor of the girl’s s right to terminate her pregnancy, offering financial support for her future education and psychological care. By August 17th, a broad societal front had arisen in favor of the girl’s right to terminate the pregnancy, supporting local judiciary officials and CISAM’s director and staff against a wave of anti-abortion attacks, as well opposing official views, such as the declaration by Minister Damares that the abortion was to be deeply regretted. Social media tracking measurements assessed on Monday 17th inform that the anti-abortion side was losing on Twitter by ten comments to one.
This case scale of visibility and response can be compared to the broad digital and social mobilization on abortion rights that took place two years ago, when a Public Hearing on a lawsuit calling for de-criminalization was hosted by the Brazilian Supreme Court.[2] It is to be noted, however, that the political and policy environment with regard to abortion rights has greatly deteriorated since then. Perhaps most importantly (though this requires further examination), everything suggests that the chorus of voices that are now manifesting in favor of the respect of law, repudiating the horror shows created by anti-abortion forces, is currently much more diverse in social, regional and even religious terms.
Even so, the saga continues
Since anti-abortion forces are unrelenting, the girl’s return to her home state was not the end of the story. As mentioned above, local judicial authorities and the CISAM medical staff who committed crimes and malpractice became the target of civil society organizations and legislators who announced they would be denounced to the national judiciary oversight committee and the Pernambuco medical regulatory body. Then, on August 29th, the Ministry of Health issued Ordinance N. 2882 on the Justification and Authorization of Procedures for Pregnancy Termination Permitted by Law. The instrument cancels the 2005 Ordinance regulating the MoH Protocol that guides legal abortion services. It requests doctors to compulsorily notify police authority in cases of rape attended by legal abortion services, thus abolishing the presumption of the truthfulness of the woman’s testimony. It also requires medical personnel to offer women and girls ultrasound screening to visualize the embryos.
The new ordinance is not merely a regulatory device: it is a weapon pointed by the Federal Executive at the right of women and girls to interrupt pregnancies resulting from rape. Its rules subject women, girls, and health professionals to unacceptable constraints, creating additional hindrances for rape-related abortion services, which are already precarious and limited. As doctor Helena Paro (who coordinates a legal abortion service in Minas Gerais) told O Globo, the new rules potentially convert clinics into police stations. Also, three other female OB/GYN practitioners severely criticized the Ordinance in an article published by newspaper Folha de São Paulo on September 6th, arguing that the norm, which compels women, albeit gently, to visualize the embryo, is sheer cruelty.
Similar regulatory barriers and constraints have long been brandished by opponents of abortion to further restrict the very limited access granted by the 1940 Penal Code. In fact, as soon as the Code was adopted under president Vargas dictatorship, the Executive Branch issued an ordinance subjecting access to the procedure to the strict rules applied to procedures related to criminal offenses. Not surprisingly, this was one of the legal standards cited in the justification of Ordinance N. 2822.
Almost 50 years later, sharp controversies concerning compulsory police reporting arose when the first legal abortion service was established in São Paulo (1989). Ten years later, as soon as the Ministry of Health’s Technical Protocol for Care of Victims of Sexual Violence was adopted, it was viciously attacked for not including mandatory notification of police authorities. In 2013, when Law 12.845 (regulating legal abortion services) was approved, a conservative Congressman who is now under arrest for corruption presented a provision to amend it to ensure compulsory crime notification and prohibit health professionals to publicly inform victims about the existence of legal abortion services. Then, in March 2020, the female leader of the anti-abortion group in Congress tabled a bill aimed at repealing the 1999 Technical Protocol and the 2005 Ordinance that regulates it, which is exactly what Ordinance 2882 has achieved with the simple stroke of a pen.
This time, however, the reaction was strong and quite immediate. Press and social media screamed loudly against this blunt top-down measure. In less than three days, two manifestos were sent to Congress and the Executive Branch repudiating the Ordinance. One of them was signed by more than 2,000 health professionals and the other by roughly 600 civil society organizations representing highly diverse sectors of Brazilian society. Then, on Wednesday, September 2nd, a legal petition interrogating the constitutionality of Ordinance N. 2882 was presented to the Supreme Court, signed by all political parties located on the left of the political spectrum (PCdoB, PDT, PSB, PSOL and PT). The lawsuit request for the immediate revocation of the Ordinance will be judged on September 25th.
Members of these parties have also put forward four bills aimed at suspending the Ordinance. Parliamentarians from PSOL have presented a formal communication to the UN’s Special Rapporteurs regarding the infringements implied in the regulation. While this was occurring, the President of the House of Representatives also came forward to publicly criticize the Ordinance, declaring it to be unconstitutional. This firm reaction on the part of progressive and liberal voices in the political system against the Executive authoritarian move that restricts access to abortion is most welcome. In the course of the last 10 to 15 years, Brazilian parliamentarians — including those at the left end of the political spectrum — have become increasingly reluctant to support abortion rights. This regrettable tendency is what partially explains the steady gains made by anti-abortion voices. Even now, the immediate Congressional reaction to the case of the girl from Espírito Santo was disappointing and rather at odds with society’s reaction.
As analyzed by feminist media outlet Gênero e Número, more than half of the 22 bills tabled in response to the case were initiated by extreme-right or center-right representatives. The large majority of them are devoted to amplifying criminal punishment of rapists, including three provisions proposing chemical castration (a policy agenda systematically supported by Bolsonaro’s political base). No provision has been made to address the prevention of sexual violence or the protection and expansion of existing abortion rights and clinics.
Contrastingly, the sharp shift registered a week later in response to Ordinance N. 2882 was decidedly firm and positive. It is another relevant sign of the political re-energizing of pro-abortion rights politics, at least with regards to the solid defense of what is already enshrined by law. Such a defense is far from irrelevant. As I have analyzed ten years ago, the goal of Brazilian abortion forces (now solidly established in the Federal Executive) is to fully abolish the right to abortion. In other words, to make Brazil into a new El Salvador or Nicaragua.
Last but not least, the overall political moment in which this wide repudiation of Bolsonaro’s prohibitionist agenda on abortion has occurred is not trivial either. This reaction coincided with the outcome of an opinion poll showing that, despite the deaths of 120,000 Brazilian to COVID-19 related illness, Bolsonaro’s approval has reached its second-highest level since his inauguration in January 2019. This coincidence is both intriguing and hopeful. Only time will tell us what exactly this means.
Images: An informal step, Antoni Tapiès; Feminist vigil in Recife, by Anderson Nascimento, Agência Pixel Press, Estado de São Paulo: Body/water/combat, by Eugenia Matricardi.
Notes
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[1] This activist is known as Sara Winter, an ex-FEMEN militant converted to Catholicism, currently involved in radical anti-abortion and anti-gender activism. Winter is now under house arrest after becoming the leader of an antidemocratic phalange that recently threatened the Supreme Court. To learn more about Winter check a profile on her published by SPW in July.
[2] For more information on this digital and political mobilization, go here.