By Sonia Corrêa
On March 7, a lawsuit (ADPF 442) was filed at the Brazilian Supreme Court to challenge the constitutionality of the Penal Code’s articles 124 and 126 that criminalize abortion. The petition was presented by the left-wing party PSOL and the feminist NGO Anis, because, as pointed out by the professor of criminal law Luciana Boiteux, a member and one of the authors of ADPF 442 in an interview for SPW the Judiciary has become, in recent years, most favorable the institutional ground for discussing the right to abortion.
One week later, the lawsuit was distributed among the Justices and the responsibility for the lawsuit fell upon Minister Rosa Weber, whose past decisions in relation to abortion have recognized the primacy of women’s rights. This was the view she supported in the 2012 judgment that recognized the constitutionality of abortion in the case of anencephalic fetuses as well as in the STF First Panel ruling of last November that underlined the fundamental rights of women to dignity, autonomy and liberty provided by 1988 Constitution and the ineffectiveness of the criminal approach to the matter enshrined in the 1940 Penal Code and that remain in the books.
According to Luciana Boiteux, “the expectation is very positive, we hope the ADPF will enhance a reasonable debate on abortion, based on the constitutional right of women to their dignity, citizenship, freedom and right to their bodies”.
How do you analyze the Brazilian context in what concerns the struggle for abortion rights in recent years?
The struggle for the right to abortion has been part of the feminist agenda for decades, with Brazil having one of the most conservative laws in the Western world. After 2015, this battle has been characterized by waves of feminist street resistance as well as by systematic efforts to monitor and contain legislative proposals aimed at further restricting women’s reproductive rights and promoting setbacks in relation to rights already won. At the Judiciary level, since 2012, two important steps have been made. The first, propelled by civil society claims, was the recognition of the right to abortion in the case of anencephaly. Then, in November 2016, the Supreme Court First Chamber in granting a habeas corpus to a group of health professionals arrested for abortion practice case has issued a substantive opinion on the right of women to dignity and autonomy and signaling towards the unconstitutionality of abortion criminalization, as it remains grafted in the law. Right now we have high expectations of a favorable decision in regard to the ADPF 442 presented by the PSOL proposing the decriminalization of the voluntary termination of pregnancy up to 12 weeks.
What has motivated the PSOL, or the PSOL women, to take the initiative to propose ADPF 442?
The main motivation was the claims made by the feminist and women’s movements, which has become wider and stronger in recent years. Another element was the enlargement of women’s space in politics and in PSOL itself. Finally, we were contacted by Debora Diniz the coordinator of ANIS – Institute of Bioethics – who suggested that the time was ripe for the PSOL – which is an entity recognized by the Court to raise constitutionality claims – to elaborate and present an ADPF in regard to abortion rights. The proposal was internally debated by the PSOL National Women Unit, then it was discussed with the party feminist caucus that, in the 2016 elections, has elected eleven feminist municipal council members across the country. Lastly, it was approved by the party’s National Executive.
Our main concern is that while at Congress level enormous difficulties exist to discuss the subject, in reasonable terms, it is urgent to respond to the tragedy of women dying because of unsafe abortions, almost every day. The 2016 National Abortion Survey concluded that in the course of the year more than 500,000 women had undergone unsafe abortions. Given the scale of the problem the petition also includes a preliminary injunction to prevent the flagrant arrest of women who abort and the suspension of all cases related to abortion until a final decision is issued by the Court in relation to our claims of unconstitutionality. This measure is necessary because the final decision may take few years.
What are your expectations in relation to what will happen next?
Our expectation is very positive, we expect the ADPF to propel a reasonable debate on the matter that will be guided by the recognition of women’s constitutional right to dignity, citizenship, freedom and right to decide on matters pertaining to their own bodies. We firmly believed that the tight criminal definition of the 1940 Penal Code in relation to abortion is unconstitutional. Despite many achievements made by women and strong signs of female emancipation in the last few decades, we, Brazilian women, continue to be liable for criminal responsibility for abortion on the basis of rules that were written before the sexual revolution, the contraceptive pill, the Divorce law (1977) and 48 years before the 1988 Democratic Constitution. The criminalization of abortion is an attack on women’s health and reproductive rights and thus it violates Constitutional premises. We trust in the reasonability and legal knowledge of the Justices, even when we do know that the ADPF will be subject to many conservative pressures. It is our understanding that the juridical grounds that converge with our claims have already been laid down in previous decisions, such as the 2008 lawsuit that analyzed the constitutionality of the Biosafety Law (stem cells) and the 2012 decision on anencephaly. These are unequivocal precedents on how to interpret the question of abortion from a fundamental rights perspective.
Even in the circumstances where the right to abortion is not approved by society, this claim can be legitimately discussed and decided upon by the Supreme Court as a matter concerning the right of minority groups to express their views on social and ethical matters. This right that also guaranteed by the Brazilian Constitution can not be ignored. Furthermore, the Court has the duty to protect fundamental rights, which in this case implies consistently assessing the adequacy, effectiveness and proportionality of criminal restrictions on abortion. We as women are the majority of the population, but in what concerns the right to abortion we can be portrayed as a minority. We have geared our claims towards the Supreme Court because today our ‘minority rights’ are not properly represented at Congress and Executive levels.