The politics of abortion rights in Brazil entered a new chapter in October. Before his voluntary retirement, the last act of Federal Supreme Court (STF) Justice Luís Roberto Barroso was to cast a vote in favor of lawsuit ADPF 442, which seeks to decriminalize abortion up to the 12th week of pregnancy. The vote resumed the judgment of ADPF, filed in 2017 by PSOL and Instituto Anis. The last procedural move had taken place in 2023, when rapporteur Justice Rosa Weber, upon retiring, also voted in favor of the unconstitutionality of articles 124 and 126 of the Penal Code. The next step was Barroso’s own request for review, which once paralyzed the lawsuit progress and would only be resumed now with his farewell vote from the Court. In requesting the opening of a plenary session for the vote on ADPF 442/2017, Barroso argued that:
“… no one is in favor of abortion itself. The role of the State and society is to prevent it from happening, by providing sex education, distributing contraceptives, and supporting women who wish to have children and are in adverse circumstances.” He also pointed out that ”the termination of pregnancy should be treated as a public health issue, not a criminal law issue“ and that ”fundamental rights cannot depend on the will of political majorities.”
He added other fundamental substantive points:
– “Criminalization does not reduce the number of abortions, it only makes them unsafe and unequal, disproportionately affecting poor and vulnerable women.”
– “In a democratic and secular society, it is up to women to decide about pregnancy, and it is up to the state to guarantee safe conditions, access to information, and health services.”
– “Reproductive autonomy is a fundamental right, and the State should not impose a single morality on issues involving freedom and personal conviction.”
Weeks before casting his vote, Barroso had stated that he would not review the matter before retiring because Brazilian society was not ready for this discussion. His statement provoked a strong reaction from the abortion right movement, which emphasized that it was not the Supreme Court’s role to wait for political or social fluctuations before reviewing fundamental rights. As soon as the minister announced on October 9 that he would retire, the feminist camp fighting for abortion rights launched a mobilization campaign to make the minister see that he could not leave the court without casting his vote.
The letter that resulted from this mobilization called not only for a vote on ADPF 442, but also on two other cases pending before the Court that seek to overcome obstacles to access to abortion in legal cases – ADPF 989 (2022) and ADPF 1207 (2025). These are also very important, given that this is the current battleground. As the SPW has been documenting and analyzing for some time, especially since the Bolsonaro era, legal abortion services have been a priority target of anti-abortion rights forces. ADPF 989 challenges the constitutionality of these obstacles and calls for guaranteed access to the procedure, while ADPF 1207 seeks recognition of the legitimacy of nursing professionals’ involvement in these procedures.
The letter lists the obstacles to accessing the procedure: “Only 3.6% of Brazilian municipalities have a public legal abortion service. In addition, illegal barriers are imposed in health services, such as the requirement of documents not required by law, such as police reports and judicial authorization, the arbitrary setting of gestational limits, and the indiscriminate invocation of conscientious objection, including at the institutional level.” He emphasizes that “the consequences of unsafe abortion are the fourth leading cause of maternal mortality, and black women are 2.5 times more likely to die in these situations.”
The votes cast on the eve of his retirement indicate that the pressure had an effect. In addition to voting in favor of ADPF 442, the minister also issued a preliminary injunction for the immediate implementation of the measures proposed in the other two lawsuits. There were positive reactions in feminist circles and among progressives more broadly, with these votes being seen as a step forward in the long struggle for abortion rights in Brazil.
On October 21, the Nem Presa Nem Morta (Neither Arrested Nor Dead) Campaign published a full-page ad in Folha de São Paulo with the following text: “Thank you, Minister Barroso! The right to continue or terminate a pregnancy is a matter of public health, autonomy, and dignity. Justices of the Supreme Court, the time of our lives is now!”
What followed and its implications
Shortly after Barroso’s vote, however, Justice Flávio Dino, rapporteur for the lawsuit, withdrew ADPF 442 from the plenary agenda. Justice Gilmar Mendes then presented a motion to interrupt the virtual trial and determine that the case be heard in a physical plenary session, with in-person debate among the justices. The preliminary injunction regarding ADPFs 989 and 1207 was also not endorsed by the STF Plenary. The majority of the Court followed the vote of Justice Gilmar Mendes, who recognized the issue’s relevance but concluded that the precautionary requirements, especially the risk of immediate damage, did not exist. Justice Luiz Fux voted against granting the preliminary injunction, arguing that the issue involves profound moral and political controversy and that it is not the role of the Judiciary to replace the legislature in formulating public policy.
This scenario is nothing new. In Brazil, since the mid-2000s, the institutional debate on abortion rights has been reignited from time to time, but regressive movements have followed this, turning enthusiasm into frustration. The struggle for abortion rights, when viewed in retrospect, is instructive in this sense: there are never solid reasons for great enthusiasm. Even less so at this moment, because since 2023 this struggle has been fought with little or no support from a progressive government that has, otherwise, vigorously confronted the far right’s continuous advances in Brazil and around the world.
In addition to the regressive movements regarding access to legal abortion listed in a recent assessment by SPW, at this moment, the names on the list to replace Barroso are all potentially or openly opposed to the agenda. The chosen name will therefore join the bench opposed to abortion rights, which already includes the two Justices appointed by Bolsonaro, Justice Luiz Fux — the third voice of Bolsonarism in the Court — and Justice Flávio Dino, who replaced Rosa Weber and has already spoken out against decriminalization. At the same time, the forces opposing abortion rights in Congress have been vigorously pushing for legislative rollbacks since last year. And the approach of the 2024 presidential election, which will once again be very heated, certainly adds more obstacles to this path.
In this context, any institutional gains must be valued. In this case, for example, the content of the votes left by Minister Barroso is a significant legacy that can and should be widely disseminated in society. Above all, it is crucial to support social mobilization initiatives in defense of legal abortion, primarily through the Criança Não é Mãe (Children Are Not Mothers) Campaign, which has managed to amplify its reach and support and vigorously sustain the agenda of abortion rights as a topic of democracy in public debate. Giving up is not an option.
Footnote
[1] Read the full text of the vote here: https://noticias-stf-wp-prd.s3.sa-east-1.amazonaws.com/wp-content/uploads/wpallimport/uploads/2025/10/17210627/Voto-MLRB-ADPF-442.pdf