by Paula Guimarães and Sonia Corrêa*
The criminalization of abortion by the 1940 Brazilian Penal Code is incompatible with women’s fundamental rights enshrined in the 1988 Federal Constitution. This premise grounds the petition presented to the Supreme Court (STF), on March 7th 2017, by the Socialism and Freedom Party (PSOL) and Anis – Institute of Bioethics. In Brazilian legal terminology this type of request is named as ADPF (Arguição de Preceito Fundamental/ Interrogation of Fundamental Principles). ADPF 442 as the petition was numbered calls for the decriminalization of abortion until the 12th week of pregnancy.
On March 27th, in Rio de Janeiro, women’s human rights experts and activists organized the first public debate to discuss the motivation and content of ADPF 442 and to assess the potential developments of the initiative. It was organized by the Brazilian Women’s Articulation (AMB Rio), the feminist NGOs Redeh, Cfemêa and Grupo Curumim in partnership with Ipas and Sexuality Policy Watch in the auditorium of the State Council for Women’s Rights (CEDIM / RJ). It was the first event of the initiative “Ocupa CEDIM” (Occupy CEDIM) is mobilized by the civil society members of the Council to protest against its dismantling by the state level government. The professor of criminal law Luciana Boiteux, who is a member of PSOL and one of the lawyers who signed the petition, began her intervention recalling that:
“We have been motivated by ANIS and decided to take this direction even when we are fully aware that this is a bold step, amongst other because we are using the juridical system against itself. We consider the time to be time for the Supreme Court to be provoked to issue its opinion on abortion rights. We view the Court as the institutional body that will conduct a reasonable argumentation on the matter and properly hear civil society voices. The decision to present the ADPF may appear contradictory because the current political environment that is very unfavorable to claims around abortion rights. But in our view, it is precisely in moments such as the one we are now experiencing that windows of opportunity for progress may arise”
Boiteux underlined that the proposal was fundamentally discussed and propelled by PSOL women – whose caucus has been strengthened after the 2016 election when the party elected 13 female local councilors. It was not a move or decision taken by the party directory. She also clarified that far from being an appropriation of the feminist struggles – as it has been aired by some voices – the ADPF is inspired by these struggles and aims to move the debate forward. In her own words:
“The petition has been drafted in very cautious and judicious terms. It was designed to dialogue with the Supreme Court modes of reasoning, while at the same time bringing to the forefront of the discussion the realities of women’s experience, the tragedies of women dying because of unsafe abortions. We made our best to translate to legal terms the language used by the women’s movement in the post 2015 street protests: “Legalize abortion. This is about our bodies, this is about women’s lives”. And, we had the great chance of having a woman, Minister Rosa Weber, sorted as the Justice responsible for the processing of the case.”
On the same day of the debate, Minister Weber, has formally requested the Executive branch, the Legislative chambers and the Office of the Federal Prosecutor to express their positions on the petition request. Boiteux explained that this measure responds to the preliminary injunction attached to the petition, which requests that arrests, police inquiries, judicial proceedings and effects of judicial decision on criminal abortion cases are suspended meanwhile the case is discussed and decided by the Court (a process that can take many years). She also recalled that abortion rights is a matter typical of constitutional as illustrated by what happened in a large number of countries and emphasized the connection between the claims to these rights and the right of minorities to express their ethical visions:
“The role of the Supreme Court is to guarantee the rights of minorities visions and access to state support in certain matters. Because in the case of abortion, as in other topics around which no easily social consensus exists, a parliamentary majority is not necessarily the most democratic solution. The contradictory aspect in the case of abortion rights that we, as women are the majority, but we claim these rights our voices can be described as expressing a minority demand, which will not be necessarily recognized by parliaments. “
The ADPF requests the full decriminalize abortion until the 12th week of pregnancy for the law to be consistent with right to dignity, autonomy, equality and health enshrined in the 1988 Constitution. The petition also recaptures key definitions settled by Supreme Court Justices in three previous decisions: the one authorizing the development of stem cell research in Brazil (2010), the one granting the right to abortion in the case of anencephaly (2012) and the opinion and voting of the First Group of the Court in November 2016 when examining an Habeas Corpus request in the case of health professionals indicted for working in a clandestine abortion clinic in Rio de Janeiro. In Boiteux’s words:
” It is vital to understand that this is a struggle of many women against state violence. We have been forced to tell the Court what is obvious: Sirs and Madams can you please apply the Constitutional premises? Yes we do know that the protection of the right to life will be at the center of the discussion. In that regard, from the political point of view I want to quote the Brazilian singer Caetano Veloso who, in one of his lyrics, says that we are facing: ‘a group that sees the soul of the fetus, but does not recognize the souls of ‘marginal’. ‘In juridical terms we are claiming for the balancing between the rights of women in the fullness of life and potential rights of the embryo still in formation. The conservative religious view on the matter consider he the right of the embryo to be absolute by there denying the rights of women.”
Abortion rights struggles: a longer view
Beatriz Galli, who represents IPAS in Brazil, agrees that time is ripe for the ADPF to be presented because “despite many institutional and political setbacks, feminist mobilizing has intensified in recent years’. While recognizing that conservative reactions will be wide and intense, she called for feminists and other pro-abortion rights advocates not to be frightened but rather to use this opportunity to further mobilize and revise strategies of action.
Galli briefly analyzed the thirty years of struggle for legalization of abortion in Brazil and its many ups and downs. She examined more closely one of its highest moment: the Tripartite Commission, formally established in 2005, to respond to the recommendation made by the 2004 First National Conference on Women’s Policies that abortion punitive legislation should be revised. She reminded that, at that point in time, the legislation of other countries where abortion is legal was examined and a very positive law provision was proposed. However, the law provision did not moved forward as the debate was caught by the first corruption scandal of the PT administration and the Executive Branch has retreated from tabling it properly.
Then she recalled that, two years later, a family planning clinic in Campo Grande, Mato Grosso does Sul, was burst by the police for providing illegal abortions. The medical records of ‘10.000 women’ were collected by the police and the judiciary began searching for and calling them as criminals. These draconian interventions occurred after anti-abortion forces led by members of the House visited the city. This episode inaugurated a new era of intensified criminalization of women who are – more than often – denounced by health professionals working in hospitals where they seek post abortion -treatment.
Galli presented the findings of a study that examined abortion criminal cases in the State of Rio de Janeiro that identified a series of violations, such as women being handcuffed in their hospital beds and bails set at very high values that could not be paid by the accused. She noted that while incarceration is relatively rare because women who abort have penalties lower that 5 years and can therefore resort to the substitution of a prison penalty by ‘voluntary’ community work.  But even so, she noted, “women who abort illegally are systematically subjected to implacable humiliation and vexatious treatment”.
Two recent cases of criminalization of women reported by health professionals in Curitiba and Camp Grande are illustrative of this state of affairs in what concerns criminalization and enforcement of criminal law (see here and here, In Portuguese). In the case of Campo Grande the woman who experienced a miscarriage at home was escorted by the military police to the hospital and later interrogated by a police chief (see below). In light of this dire reality, Galli considers that, from the juridical point of view, the November, 2016 decision by the STF’s First Group was a major step ahead as it ” opens an important precedent, drawing a very progressive interpretation regarding sexual and reproductive rights and shows consistency in the treatment given by the Supreme Court to the subject.”
The other side of equation, in her view, is decidedly political: the strengthening and amplification of feminist abortion rights claims since the October 2015 street protests against the Law Provision 5069, which aimed at restricting the access to abortion in the case of rape, because these mobilizations have renewed Brazilian feminisms. Along the same line, she thinks that the series of Senate Public Hearings to discuss a popular Legislative Suggestion (SUG 15-2014) proposing the legalization of abortion, which have also began in 2015, has also contributed positively for the problems deriving from abortion criminalization to gain greater visibility.
Abortion is a classical Supreme Court
Eloísa Machado de Almeida, a professor at the FGV-SP, analyzed more in detail how ADPF 442 s positively recaptures and amplifies the juridical tenets informing the above mentioned three precedent of the Court in decisions directly connected to abortion rights (stem cell research, abortion in the case of anencephaly and the November 2016 habeas corpus).
“The strategy adopted by the ADPF petition is solidly based on the arguments developed by the ministers in these previous occasions. It is also important to understand that abortion rights constitute a matter that is typically decided by constitutional courts. Very few countries have decriminalized abortion through the legislative. Court decisions have been crucial in countries where conservative views on abortion are strong as it happens in Brazil”
“Our main challenge in this debate is sustain the principles of secularity of the state. The discussion on the criminalization of abortion poses a test to Brazilian secular state institutions. Will they be able to break with a long tradition of Republican apparatuses to remain attached to religious views on certain matters? In the case of abortion, as we do know, the opposition comes from facade NGOs and political parties that represent religious organizations, as well as from their formal structures of representation, such as the National Conference of Catholic Bishops and equivalent Evangelical bodies.
The Federal Prosecutor for Citizenship Rights, Deborah Duprat, agreed with other panelists that time is ripe for re quest from the Supreme Court a juridical solution for the violations that derive from criminalization of abortion. She also reminded that because abortion is criminalized many doctors continue to refuse performing abortion in cases when it is legal (rape, to save women’s lives and anencephaly) because they fear being punished. She also suggested that when calling attention of the Court to the tragedy of individual cases of death and detrimental health impacts related to unsafe abortion and the arbitrary treatment or punishment suffered by women it is important to show how these effects differ across class and racial lines. Duprat has also insisted on the premise previously raised by other voices in the panel that the right to one’s own body “ is at the core of the principles of dignity, freedom and equality”.
Conservative restoration and the denial of rights
Lúcia Xavier who coordinates the Black feminist NGO Criola -and is a member of the Brazilian Articulation of Black Women’s (AMNB) – situated the debate on abortion rights and ADPF 442 against the backdrop of the current Brazilian conjuncture. She reminded that Brazil is experiencing a fierce struggle for political hegemony. If the denial of women’s rights is one main feature of this scenario, its other central element is the dominating presence of ideological forces that systematically deny rights, broadly speaking: “these are forces that act and react in dictatorial ways, resorting both to propagandist persuasion and violence”. Xavier also called for more nuanced and complex analyses of who are the adversaries of sexual and reproductive rights.
“The Evangelicals are certainly at the forefront of the conservative camp. But they are not alone; they are just the front liners. Behind them we can identify intellectuals, middle class sectors and the elites that silence when they make their attacks on these rights. It is also necessary to understand that the battles underway are not exclusively moral or political in a narrow sense, they are interlinked with wide and deep processes of -reconfiguration of capitalism”.
According to Xavier, sexual and reproductive rights are the main targets of these conservative forces because they have the potentiality to promote radical changes in society, because they trigger struggles that feed resistance against those who are proposing the elimination rights more broadly speaking. She also emphasized that the need to recognize the distinctive rights claims of different women in the current and difficult democratic struggles. Lastly, in her view, while greater knowledge, technical and political capacity are now available for women’s movements, these movements have not yet crafted more efficient tools and strategies to more fully engage in the disputes for hegemony currently at play in the national landscape.
Even before the Supreme Court began its formal procedures in regard to ADPF 442, the Social Christian Party (PSC) — which is dominated by Evangelicals including few of the most right wing House Representatives — has already presented an Amici Curi to the Court questioning the request. Its core argument is that the right to life must be protected from conception and, in PSC’s view, if many women are unable to raise the children they have conceived, it is necessary to improve their livelihoods but not prevent the fetuses from being born.
Two days after the Rio debate the newspaper Estado de São Paulo informed that the Presidential cabinet had sent a classified Technical Note (number 38/2017) to the Office of the Attorney General that also expresses a position totally contrary to the decriminalizing argument raised by ADPF 442. In critically commenting the few excerpts of the Note that have been leaked by Estado de São Paulo.
In an interview (in Portuguese) to CONECTAS Human Rights, Sonia Corrêa, SPW co-chair underline a number of contradictions and biased. Firstly, she considers that, when affirming that the Brazilian juridical order protects the social value of the unborn it is, in fact, re-constructing history. While indeed the matter was extensively discussed in the 1986 -1998 constitutional processes, the right to life from conception has not been enshrined in the final text. This 1988 normative definition created the juridical and political conditions for the meaning of the right to life to continue to be debated, as it happened in many occasions, as in the context of the three Supreme Court decisions above mentioned. And she adds:
‘When it insists on this re-constructed version of history the Technical Note is deliberately superimposing the intention of the current legislators who have proposed a number of reforms in that direction – the recognition of the absolute rights of the fetus – and on what has been is grafted in the constitutional norm.
Corrêa also observes that this is the first time in the thirty years since the adoption of the Constitution that the Executive branch abandons its usual ‘ neutrality, or better said ambivalence, in relation to abortion rights to openly and strongly position itself against the reform of abortion punitive legislation. Most principally, she underlines, the tone of note with respect to women is blatantly derogatory. Even when the text uses a compassionate semantics to state that “women (who abort) should be protected and welcomed, never harassed”, what prevails is a tone that characterizes women who abort as irresponsible and selfish (their desire, interest or will). The excerpts that have been leaked do not mention, for example, the well known conditions and contexts that lead women to interrupt pregnancies, such as the sharp inequalities of gender, race, income and access to resources. In that regard, she says, the Technical Note, in fact, borders cynicism when it declares that it is not the State that “constrains women to clandestine and risky abortion practices“.
On the positive side, right after the information about the Technical Note 38 was circulated, the results of a an opinion poll on social perceptions on abortion decision, conducted by Catholics for the Right to Decide and one main poll institute (IPOBE) in mid-February, were made public. The pool informs that sixty four percent (64%) of the interviewed (in a sample with demographic consistency) consider that the decision about terminating a pregnancy is the exclusively of the woman. The survey also shows that just nine percent (9%) of respondents agree with the affirmation that the decision is to be shared with husbands or partners; six percent (6%) named the Judiciary as the power that should decide about this matter; just four percent (4%) attributed this mandate to the churches and merely 1% have said that the Presidency or the National Congress should have a voice on this matter. These results suggest that the Brazilian society is more open today to discuss abortion legal reform than those who claim to represent it in Congress or the President of the Republic. These are propitious signs in the early days of new and certainly troubled journey towards the achievement of abortion rights in Brazil.
Read Luciana Boiteux views on ADPF 442
Main image: André Mantelli, Finadas do Aborto at the March 8th 2017 March in Rio de Janeiro
* This analysis is based on the article written by Paula Guimarães for the Portal Catarinas, which was complemented and updated by Sonia Corrêa
 “Marginal ‘is the Brazilian popular term to name criminals. Caetano Veloso lyrics is addressed to conservative political and social actors, including religious voices, that virulently attack abortion rights while at the same time support the restoration of death penalty
 This is what happened in the case of women indicted in Campo Grande in 2007, most of whom have paid their ‘crime’ working on day care centers because local judges considered that they should learn to be ‘good mothers‘
 As for example Jair Bolsonaro, who openly defended the use of torture in the House session that decided on the removal of Dilma Roussef from the presidency in April 2016 (check here) and the Pastor Marcos Feliciano who presided the House Human Rights Committee in the 2013 – 2014 period (check here).