Abortion: from ambiguity to setback
Researcher Sonia Correa says government has never taken such a resounding position against decriminalization of abortion
Access to sexual and reproductive rights was back on the agenda this week after the partial release of a technical report sent by the Brazilian Presidency to the Attorney General’s Office in which the government of President Michel Temer took a position against the decriminalization of abortion.
The report will impact the Office’s position on Case No. 442 in the Supreme Court, which was filed in early March by the Socialism and Liberty Party (PSOL).
The case claims that the criminalization of abortion in Brazil violates the dignity and the autonomy of women and it calls for the preliminary suspension of the articles of the Criminal Code that regulate the topic. The court’s report on the case will be drafted by Justice Rosa Weber.
According to excerpts of the technical report published by the O Estado de São Paulo newspaper, the federal government considers that “the life of the unborn child should prevail over the wishes of the pregnant woman”. The document also states that “it is not the State or the law that forces women to clandestine and risky abortions”.
Sonia Correa, research associate at ABIA (Brazilian Interdisciplinary AIDS Association) and co-chair of Sexuality Policy Watch, explains the impact of the government’s position on the abortion debate in Brazil and refutes the arguments presented in the technical report.
Conectas – What does the government’s Technical Report 38 say about the decriminalization of abortion?
Sonia Correa – Before talking about the partial content of Technical Report 38 that was released by the O Estado de São Paulo newspaper, it is important to clarify that it is a response to Case 442 filed in the Supreme Court by the Socialism and Liberty Party (PSOL) on March 7, which challenges the constitutionality of the articles of the Criminal Code of 1940 that criminalizes abortion.
The case argues that these articles violate the fundamental principles of dignity and autonomy of women and have an impact on women’s right to life, health and access to methods for the regulation of fertility. The case also claims that the effects of criminalization are selective and more harmful for black and poor women, and finally it highlights that recourse to criminal law in this case, as in others, does not stand up to an adequacy test, since the punishment of abortion over the past seven decades has not prevented women from having access to them, and putting their life and health at risk.
The case includes a request for an injunction, i.e. an urgent action by the Court. Justice Rosa Weber, who will draft the court’s report on the case, has acknowledged this urgency, which is very positive. For the proceedings of the case to begin, in accordance with Law 9882 [which regulates the process for the Supreme Court to hear the case], the first step is for the Executive Branch, represented by the Attorney General’s Office, to express its opinion on the topic.
The technical report from the Presidency sent secretly to the Attorney General’s Office – I don’t know why, since the debate is public – should be seen as the first reaction of the institutional actors called upon by Justice Weber. It indicates a conscious effort by the Temer government to take a position on the topic, a position that strays from what has generally been the position of the government on the topic – one that has leaned more towards “neutrality” or, to be more precise, “ambiguity”.
Taking as a reference the historic milestone of the Constituent Assembly of 1988, which did not include the right to life from conception in the Constitution, rarely have the members of the Executive branch spoken out in favor or against the legal reform of abortion. In 1997, the minister of health [Carlos Albuquerque] expressed his personal opinion when he told the press that he would ask President [Fernando Henrique] Cardoso to veto a law that guaranteed the provision of legal abortions through the public healthcare system. And, in 2004, in response to a demand from the 1st National Conference on Policies for Women, the government of [Luís Inácio] Lula [da Silva] set up a tripartite commission involving the Executive, Legislative and civil society to study and propose a legal reform. However, never in nearly thirty years have we seen the Executive come out so resoundingly against abortion as the Temer government has done now.
To find out more about the case:
https://theintercept.com/2017/04/04/aborto-stf-e-palco-da-batalha-definitiva-pela-descriminalizacao/
http://anis.org.br/aborto-movimentacao-e-sinal-de-que-o-tema-e-relevante-para-o-stf/
http://sxpolitics.org/ptbr/acao-no-stf-por-um-debate-mais-racional/7205
What does the technical report represent for the debate on abortion in Brazil?
Besides this new development, i.e. the blatant effort on the part of the Executive to position itself against the reform of the criminal law on abortion, the excerpts from the report that have been made public are decidedly problematic. For example, by stating that under the Brazilian legal order “the social value that is protected is that of the unborn child” the report disregards what I said earlier, namely that the Brazilian Constitution does not include the right to life from conception.
This constitutional definition from 1988 creates the conditions for the meaning of right to life to continue being debated in the light of both scientific developments and political and cultural transformations and also legal transformations. The debate also takes as a reference international laws and the reforms recently carried out in several countries, including in Latin America – as was the case in Colombia (2006), Mexico City (2007) and Uruguay (2012) – but also in other continents, in the cases of Nepal (2004), Portugal (2007), Spain (2010) and Mozambique (2015).
The Brazilian Supreme Court has itself delved deeply into this ethical and legal dilemma in earlier debates on stem cells and abortion in cases of anencephaly. As the text of the current case highlights, primarily in the case of anencephaly, the Supreme Court has “reinforced the understanding of the relativity of the infra-constitutional protection of the fetus considering the dignity of the human person of women and their rights to health, sexual and reproductive freedom and self-determination”.
For this reason, one of the central arguments of Case 442 is the balance of rights between the potential life of the embryo and the full life of the woman. By stating that the legal protection of the unborn child is absolute, Technical Report 38 deliberately confuses the intention of lawmakers who have proposed reforms to this effect, such as the Statute of the Unborn, with what is enshrined in the Constitution and has emerged systematically in the debates in the Supreme Court.
In this regard, I recommend reading the section on this point in the text of the Case.
The report also argues that “the political representatives of Brazilian society have opted for the protection of the interests of the unborn”. Although this excerpt describes the congressional climate on the topic, it does not take into consideration three crucial aspects.
The first is that, as is well known, the representativeness of the current Congress is in question, in a number of ways. In particular concerning the criminalization of abortion. An opinion poll conducted by [polling firm] Ibope together with the group Catholics for the Right to Decide in mid-February found that the dominant position on the topic in Congress does not correspond to the perception of society.
According to the survey, “64% of Brazilians think termination of pregnancy should be the sole choice of the woman”. The poll also found that 9% of the population believes that the decision should be made by the husbands or partners, 6% said by the Judiciary, 4% by the Church, 1% by the Presidency of the Republic and 1% by the National Congress.
These results indicate that Brazilian society is more open to a legal reform than those who claim to represent it in Congress – which is possibly a positive effect of the demonstrations on the right to abortion that have filled the streets and circulated in the press and social networks since 2015.
Finally, as is acknowledged today in the international debate, the right to abortion, just like other matters of similar import, should not be determined by majorities, since this always implies the trampling of the rights and positions of people who hold a minority view of the same issue.
No less important, the tone of the report in relation to women is openly derogatory. Although the text employs compassionate language when it says that “women should be protected and shielded, never harassed” (which should be guaranteed by the proper authorities), what prevails is a terminology that characterizes women who abort as irresponsible and selfish, motivated by desire and self-interest, and that completely overlooks the conditions and contexts that lead a woman to terminate a pregnancy – among them, inequality of gender, race, income and access to resources that, regrettably, are still characteristic of Brazilian society.
It is also regrettable that the report claims that it is not the State that “forces women to clandestine and risky abortions” when it is known that a high percentage of women who abort in the country do so because they have never had proper access to information or the means to prevent an “unwanted” pregnancy.
What will be the impact of the Attorney General’s Office’s position?
I predict that the Attorney General’s Office will adopt the position of the Presidency, because that’s how these things work, isn’t it? But I hope it does so without resorting to arguments with no solid legal foundation or discriminatory terminology, to at least raise the quality of the debate.
And, like I just said, this position is part of the process. We have to wait for the position of the Legislative and the Federal Prosecutor’s Office before we can make a more robust assessment. But as Luciana Boiteux rightly said during a debate staged in Rio de Janeiro last week, what characterizes a democratic debate is the presentation and processing of different points of view, and the Supreme Court is a constitutive element of democratic development.
Furthermore, it is important to remember that many other positions will be expressed and be heard by the Supreme Court, whether in the form of amici curiae or in hearings. The urgent issue of the decriminalization of abortion has been placed with quality and strength in the public sphere. And that’s what matters.
Excerpts from Technical Report 38 released by the O Estado de São Paulo newspaper on April 2:
It is not the State or the law that forces women to clandestine and risky abortions.
Not to ignore the anguish and the suffering of women who do not wish to proceed with a pregnancy, but the social value that is protected is that of the unborn child.
This means that the Brazilian legal system has already given due and adequate treatment to this delicate individual matter.
Women should be protected and shielded, never harassed. But the life of the unborn child should prevail over the wishes of the pregnant woman.
In republican democracies that are civilized and decent societies, no topic is a sacred taboo that cannot be the subject of ongoing debates, deliberations and renewed discussions. This is why from time to time there are elections.
Indeed, legislative bills have already passed through Congress on the topic. The political representatives of Brazilian society have opted for the protection of the interests of the unborn. If there is a shift in orientation, such a change shall be made through political and congressional debate, with the proper authorization.
Between sacrificing the life of an unborn child and sacrificing the desires (or interests or wishes) of the pregnant woman, the option that best serves social morality and political ethics is the one that preserves the expectation of the fetus to be born (or of the unborn child to live) over the interests of the woman, except in the legal hypotheses already laid out.
