By Sonia Corrêa*
Brazil has been experiencing important setbacks in regard to abortion in recent years. A clear turning point was September 2005, when a law provision aimed at reforming existing punitive legislation was presented to the Congress without the required support of the executive branch. Though a few months earlier the government, responding to a recommendation of the First National Conference on Women´s Policies (2004), had called for the formation of a tripartite commission to revise the penal code, when the Commission delivered a draft bill to legalize abortion, in August 2005, a corruption crisis was underway, and the abortion law reform was caught in its complexities (read the working paper Pope’s visit to Brazil). The present scramble around the III National Program for Human Rights Policies is, therefore, just another chapter in this ongoing saga.
It is, however, relevant that the current controversy has allowed for abortion to be discussed widely and, for the first time, as a human rights issue. It is not trivial either that the macro level political bargains triggered by the controversies have situated abortion as the “other” problematic issue to be negotiated among key actors (in addition to the Commission of Truth, proposed by the III National Program for Human Rights to revise state crimes committed during dictatorship).
To understand the meaning and complexity of the debate underway, it is worth reviewing at least two key elements of the contemporary Brazilian history. The first is that, as in other countries in Latin America, the progressive Catholic Church of the time was a key defender of political and civil rights during dictatorship. The conservative Catholic Church that emerged after the election of John Paul II as the Pope in 1979, however, systematically contested all advances in the area of sexual and reproductive rights, particularly in the area of abortion, that emerged as a result of democratization.
The resistance of Brazilian military and of some sectors of the political elite to fully reviewing state crimes committed during the military regime is another key feature to be highlighted. In Chile, South Africa, and Peru (after the Fujimori authoritarian period), Commissions of Truth and Reconciliation were established. In Uruguay and Argentina, clear and sharp judicial review and punishment of military dictatorship crimes have also taken place and are still underway. But in Brazil, the 1979 Amnesty Law that “pardoned” those engaged in political and armed action against the regime has also forgiven state actors involved in human rights abuses and is consistently interpreted, by those resisting a full historical review, as a final and definite closure of the past.
However, in the mid-1990s, a Commission was established at the Ministry of Justice to search for missing persons and unidentified corpses and to financially compensate people who had lost family members, as well as people whose professional careers had been affected by political persecution. No full review of state crimes committed between 1964 and 1984, however, has been conducted. The objective of the Truth Commission proposed in the III National Program for Human Rights is to complete the difficult work of historical review and closure.
It is also important to note that the III National Program for Human Rights by and large maintains and expands proposals contained in a previous program, which was adopted in 2002 (at the end of the Cardoso administration). But it also incorporates language coming from a variety of sources: existing legislation on human rights of specific groups (such a as children and indigenous people); recommendations from the periodical National Conferences on Human Rights and other conferences that directly address human rights issues (such as the National Conferences on Health, on Women’s Public Policies, on Public Policies for the LGBT population etc.); recommendations from international conventions; and other relevant international documents.
The III National Program for Human Rights recognizes that human rights are indivisible, in that they encompass civil, political, economic, and social rights. The document covers a wide range of subjects such as: food security; the right to health and within it, further regulation of private health insurance; prisons conditions and rights of incarcerated persons; judicial procedures regarding rural property occupation by landless peasants; genetically modified seeds; social accountability of media outlets; same sex civil unions; and the display of religious symbols in public buildings.
In relation to abortion specifically, it should be noted that a proposal to revise existing laws punishing abortion — derived from the Beijing Platform — was already included in the 2002 program. The language adopted in the new text is based on the First National Plan for Women’s Policy (2004) and calls for the decriminalization of abortion to guarantee women’s autonomy over their bodies.
The document, though prepared by the National Special Secretary for Human Rights, was revised by all concerned ministries and signed by their respective ministers. However, when its content became public and started to be absorbed by key political actors, harsh controversies erupted within government itself. Two ministers openly expressed their disagreement with the text. The minister of agriculture complained about the plan’s call to ban genetically modified seeds. Most critically, the minister of defense, who is a civilian, publicly declared that the military did not accept the language adopted in relation to the commission of truth, as it exclusively referred to crimes committed by state actors , without recognizing the human rights abuses committed by political dissidents.
Concurrently, other actors raised their voices against other critical areas. Representatives of rural land owners complained about the judicial rules concerning land occupation, private health insurance companies argued against proposals regarding ceilings in premium costs for aging people, and the media contested the call for greater social accountability. Most importantly, the Catholic Church immediately expressed its full opposition to the proposals on the legalization of both abortion and same sex marriage, as well as the proposal about the display of religious symbols in public edifices. The main complaint of Catholic Bishops was that the Program went against “defense of the right to life.” While a large number of content areas of the third program were contested and discussed, it is significant that the debate very quickly crystallized predominantly around the truth commission and abortion.
In response to the reaction of the minister of defense, speaking on behalf of conservative voices within the military, the National Secretary of Human Rights threatened to resign, and President Lula very quickly called a closed meeting between the two competing ministers to find a solution to the crisis. After the meeting, a new presidential decree was immediately published. It changed the language originally adopted by the Program, eliminating the terms “political repression” in order to dilute the exclusive focus on state violations. This quick move has appeased, at least for the time being, the conservative military reaction. The public debate on the matter has also made clear that the Truth Commission has wide public support. However, it is too soon to claim that the controversy is fully resolved, as it may resurge when the subject is debated at the level of Congress.
The dynamics of the political bargaining were, however, completely different in the case of the abortion debate. While the “truth commission problem” was being processed, the Secretary of Human Rights declared that the text on abortion should be changed because, he said, the justification used for legalizing abortion – to “guarantee women’s autonomy” – was a feminist argument and did not reflect the government’s position on the subject. Although he did not explicitly state what the official position was, previous episodes concerning abortion suggest that it would involve framing abortion as a major public health problem (and eventually maintaining the law as it stands today). Immediately after this declaration, the Secretary met with the representative of the National Conference to discuss the matter. Almost a month elapsed before he met with the feminist organizations representing the voices of those who support abortion legalization.
Right after the National Secretary on Human Rights stated that the government would seek support for the Program from the international human rights system. In fact, the UN High Commissioner Navi Pillai, who recently visited Brazil, has already published an article in the Brazilian Press (Folha de São Paulo) openly supporting the creation of the Truth commission. But the next governmental step would be to ask UNESCO to consider the dictatorship archives and a patrimony of humanity and to have the Office of the High Commissioner assess the consistency of the III Program with existing international human rights law. Resorting to international human rights instruments to defend the III Program was certainly a quite remarkable step. But it should be also noted that while existing international instruments provide strong supporting arguments for those topics relating to political persecution and measures of truth investigation, the identification of international human rights language on sexuality and abortion is more complex. It will require the content of international conference documents and of recommendations issued by human rights surveillance organizations to be made visible and to be valued.
Meanwhile, feminists and other sectors have mobilized country-wide to support the Program, particularly around International Women’s Day. But on March 16th, the press announced that the National Secretary on Human Rights had declared that three items included on the plan would be eliminated or modified: the recommendation on religious symbols in public buildings, the rules concerning land occupation, and, evidently, the language on legalization of abortion. Not surprisingly, the next day, an abortion clinic situated in a poor area of downtown was closed by the police, and health professionals and clients (some of them bleeding) were criminally indicted.
Petitions and protests against the announced decision quickly circulated. Feminist organizations gathered around the The Brazilian Initiative for the Right to Legal and Safe Abortion (Jornadas por um Aborto Legal e Seguro) and signed a public letter making it clear that they would not accept any change in the language adopted by the III Program. On March 19th, in a public event organized by the Public Defenders’ Office in Rio to discuss the III Program, the Secretary said that, in relation to the abortion debate, he had consulted not only Bishops but also Catholics for Choice. Most importantly, he informed the audience that the call for decriminalizing abortion would not be eliminated but that language would be modified to be consistent with what is written in the Beijing Platform of Action (paragraph 106k, which combines paragraph 8.25 of ICPD with the recommendation that countries must revise punitive legislation). But in light of the constant back-and-forth of the controversy, this may not be the end of the debate.
To summarize, the entire episode is revealing of the complex contradictions of the Lula administration, which are not always easily understood by those who do not experience the daily dynamics of domestic politics. These contradictions involve both internal, high level tensions and big gaps between the positions expressed by civil society voices in participatory policy mechanisms – such as the conferences – and official positions that are usually framed in terms of economic interests and electoral bargains.
Trends and skirmishes observed since January reveal that, once again, the legalization of abortion is deeply caught within the complex webs of a major political trade-off in which the real prize at stake seems to be the Commission of Truth. It is not trivial either that the Catholic Church, which was a major advocate for political rights during dictatorship, is once again fully opposing abortion, same sex marriage and secular rules about the display of religious symbols.
Last but not least, given that the tone of debates surrounding the III Program was determined by a wide range of intricate factors, actors and forces, it is not trivial either that 2010 is an electoral year. On the one hand, relevant actors from all sides of the political spectrum are always nervous that if they favor legal abortion, they will lose votes in the sectors heavily influenced by the Catholic Church and certain Evangelicals. On the other hand, voices in favor of abortion rights may also become more vocal. More to come!
*Co-chair of SPW