A new ruling in the Braziliuan Supreme Court prior to the hearing on the Zika submission: notes from Debora Diniz and Sonia Correa
by Safe Abortion, Dec 6, 2016
27 November - It has just been announced that the Brazilian Supreme Court is set to rule on the preliminary injunction of the Zika case on 7 December 2016. The preliminary injunction request refers to all demands of the case: access to information, to wider choice on contraceptive methods, to pregnancy termination for pregnant women infected with Zika and experiencing mental suffering, to free transportation to rehabilitation centres and to the disability cash transfer programme for all children with the congenital Zika syndrome.
At this point it it hard to anticipate how votes will go, although it is expected that the Court may deny the injunction regarding abortion by saying they need more in-depth debate on the issue.
The Anis Institute of Bioethics filed an amicus curiae request on the case (as have two anti-choice organizations), but none have been ruled upon yet. We are working to try and schedule meetings with the Justices before 7 December.
1 December On 29 November, when ruling on a case involved the release of five employees accused of illegal abortion in a clandestine abortion clinic in a city neighbouring Rio de Janeiro, three Supreme Court Justices (members of one of the Court’s two chambers, composed of five Justices) went further than the case involved and ruled that abortion should not be a crime if performed in the first three months of pregnancy.
This extended opinion was delivered on 29 November by Justice Luís Roberto Barroso, accompanied by two other Judges, Rosa Weber and Edson Fachin. This opinion went beyond sustaining the release of the clinic staff to weave an argument in defence of the decriminalization of abortion up to 12 weeks of pregnancy.
A news report on the judgement explains: ‘For Justice Luís Roberto Barroso, the anti-abortion articles in the Criminal Code disrespect women’s basic rights. “Women bear alone the burden of pregnancy. Therefore, there will only exist gender equality if women have the right to decide whether to continue a pregnancy or not,” he wrote in his decision. Moreover, anti-abortion laws penalize low-income women who don’t have access to private clinics that would perform abortions in secret. Barroso said that the state should avoid pregnancy interruptions – but with sexual education policies and the distribution of contraceptive methods.’ See: plus55, 30 November 2016.
Debora Diniz continues: It is important to clarify, as there’s been some confusion even in the national media, that this decision does not mean the decriminalization of abortion in Brazil: it is just one case, and according to our procedural law, it is not a binding precedent. It is, however, a clear and strategic message, led by Justice Cardoso (who was the lawyer of our anencephaly case), that some Justices are ready to ask the right question on abortion cases, which is: how can abortion be considered a crime under the Brazilian Constitution’s provisions on gender equality, dignity, and right to health?
It is also a relevant framing for our Zika case, although they may not get into this debate specifically next week when ruling on the preliminary injunctions – but it may be of great importance for the final decision, whenever it comes. And it is a debate that we can work to further develop on other cases as well. The christian fundamentalist caucus at the National Congress is already making noise to push back against the new ruling, but this is nothing new, it is more of the same of what they have been doing over the last 10 years.
Sonia Correa writes: This was the first time the Court has expressed a comprehensive position on abortion rights. Four years ago, when considering termination of pregnancy in the case of anencephaly and stem cell research, the Court solidly affirmed that the absolute right to life from conception was not enshrined in the Brazilian Constitution. Judge Barroso’s opinion expresses the understanding that the fundamental rights of women provided for in the 1988 Constitution make the complete criminalization of abortion unconstitutional, as defined in the 1940 Penal Code, which is still in force today. According to Judge Barroso, while the potential life of the fetus is obviously relevant, the criminalization of abortion before the end of the first trimester of pregnancy violates several fundamental rights of women granted by the 1988 Constitution: personal autonomy, physical and mental integrity, sexual and reproductive rights and gender equality. The opinion also refers to racial inequality and discrimination and considers that the law as it is does not sufficiently observe the principle of proportionality necessary for the fair application of criminal justice.
Unfortunately, as soon as the news of the Court’s opinions was made public, members of the House of Representatives created a committee whose aims was to contest the judgment as a breach of interference by the Court in “a matter that is fundamentally the responsibility of the legislature”. It is worth remembering that this is an overtly conservative legislature, which has been openly attacking abortion rights since it was elected in 2015, and that a number of regressive bills are pending for a final vote, including the nefarious provisions that grant rights to the “unborn” (Statute of the Unborn) and make abortion a heinous and punishable crime under any circumstances. It is impossible to predict the unfolding of this pitched battle over abortion that now appears to divide the powers of the Brazilian republic nor the effect on the hearing on 7 December.
We will continue publishing reports as events unfold. The Sexuality Policy Watch newsletter will carry an expanded version of Sonia Correa’s analysis above later this week.
SOURCES: Email from Debora Diniz; plus55, 30 November 2016; Email from Sonia Correa;
See also the Campaign newsletter from 23 November for a full report on the Zika hearing scheduled for 7 December.
Source: International Campaign for Women's Right to Safe Abortion