The Wait is Coming to an End: The Brazilian Supreme Court’s Promising Opportunity to Finally Decriminalise Abortion up to 12 Weeks

by | Oct 4, 2023

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About Tais Sofia Cunha De Barros Penteado

Taís is a visiting researcher at Yale Law School (Fall 2023). She is also PhD Candidate and holds an M.A. from FGV Law School of São Paulo. Taís has an LLM from Yale Law School and is a FAPESP Scholarship holder.

In September 2023, a key event changed the direction of discussions about the criminalisation of abortion in Brazil: Justice Rosa Weber, rapporteur of ADPF 442 –Brazilian acronym for “Claim of Non Compliance with Fundamental Precept”, which seeks the declaration of unconstitutionality of the criminalisation of abortion up to the 12th week– released the case for trial. The Justice issued her opinion in the following week, voting for decriminalisation. However, the ruling was suspended for procedural reasons and now waits to be rescheduled.

The news has catalysed debate in feminist circles. This opens a window of opportunity to bring to the surface, in a simple and direct way, a legal argument for decriminalisation, and to synthesise ideas emerging from years of collaboration between social justice advocates, lawyers and academics committed to the issue. These groups have long claimed that the criminalization of abortion clearly violates the principle of equality in Brazil. Moreover, this inequality lies at the intersection of patriarchy, racism, economic deprivation, and other systems of oppression.

The unconstitutionality of criminalisation is a matter of jurisprudential coherence. Here I focus on a specific line of cases which have equality as their central issue. These cases draw attention to the need to adopt a perspective of substantive equality, which recognises that equality demands challenging the practices that are the result of subordination and which perpetuate oppression.

Examples include ADPF 186, in which the court ruled affirmative action constitutional. This is because, despite being treated differently, such measures aim to improve the status of certain groups historically treated as second class. Racism, for example, was seen as a structural problem to be combated. A similar understanding appeared in ADO 26 (“Request for Declaration of Omission), which resulted in the criminalisation of violence perpetrated against the LGBTQIA+ community. The rationale for this decision was that harms against the group is the result of structural prejudice and that impunity perpetuates the marginalisation of the group. A final example is the declaration of unconstitutionality of the ban on blood donation by homosexual and bisexual men. In this case, ADI 5543 (“Request for Declaration of Unconstitutionality”) the court also understood that the measure was the result of stigma which upheld the group’s subordinate position, and which therefore constituted a violation of the principle of equality.

If structural inequalities are to be categorically denounced in Brazil, then the criminalisation of abortion remains one of the most glaringly unconstitutional legal issues. It remains criminalised due to enduring prejudice towards women and people who have uteruses, and these groups’ persistently subordinate status. Social norms perpetuate the idea that women’s ultimate destiny is motherhood, which promotes the idea that female sexuality must be controlled. However, unwanted pregnancies are associated with social inequalities more broadly: violence, poverty, lack of information, fear, lack of access to contraceptives, and social stigma combine to make society’s most vulnerable groups those most likely to have their reproductive freedom violated. As such, criminalisation of abortion reifies women’s subordination. But, more than that, forced pregnancy perpetuates it, given that the burden of domestic labour and care responsibilities are disproportionately allocated to women. Moreover, parental abandonment by men and an absence of state-supplied maternal welfare regimes mean that the birth of a child can lead to helplessness, poverty and, ultimately, the exclusion of women from the public sphere.

Despite criminalisation, many women resort to backdoor procedures. Wealthy white women tend to have access to safe abortions in private clinics, while poor women, mostly Black or Indigenous, and from the poorest parts of the country, in turn, have unsafe clandestine abortions as a way out. This is also a question of equality: the lives of the most vulnerable women are treated with contempt, which is especially ironic when we consider that many defend criminalisation as protecting the sanctity of life.

If the criminalisation of abortion is both the result and the means of subordination, the court’s interpretative coherence demands the declaration of its unconstitutionality. This is respect for the law and the court’s jurisprudence at its simplest: you don’t have to be a feminist or radical to understand this. But as a feminist advocate, I will continue to fight for the decriminalisation of abortion and for the substantiative equality of the women of all backgrounds. It is to be hoped that this opportunity will enable Brazil to make a landmark decision that proudly affirms the principles of non-discrimination and human dignity.

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