Brazilian Supreme Court Begins to the Lay Groundwork for Decriminalization of Abortion

By: Amanda Greenberg

The Brazilian Penal Code, adopted in 1940, decriminalizes abortion only in cases of rape and to save the life of the mother. However, every year an estimated 850,000 Brazilian women risk up to three years in jail to have illegal abortions, many under dangerous conditions. However, on November 29, 2016, the Brazilian Supreme Court (STF) made the surprising decision that criminalizing abortion prior to the twelfth week of pregnancy is inconsistent with the Brazilian constitution.

The November 29th decision was decided by a panel of 3 out of the 11 STF judges. The case concerned the release of five practitioners accused of performing illegal abortions at a clinic in Duque de Caxias. The trial court ordered their release because the defendants in this case had not committed previous crimes, had permanent work and residences, and posed no risk to the public or economic order. However, the appellate court reversed the trial court’s decision causing the abortion providers to seek habeas corpus in the STF.

Unlike the United States Supreme Court, it is typical for STF decisions in Brazil to be decided by a fraction of the courts members in the form of a panel. Coincidentally, on the five -judge panel deciding the abortion practitioners’ case was Minister Luis Roberto Barroso. Barroso had previously successfully argued before the STF for the decriminalization of abortion for women carrying babies infected with anencephaly, which causes babies to be born without portions of their brain and skull.

Usually in STF cases, one minister of the court will be assigned as the rapporteur and that judge will be the only one to read the pleadings, explain their position to the other judges, and then and write the Courts’ opinion. However, in this case Barroso seized the opportunity to convert the habeas corpus appeal into an allegation of disobedience of a fundamental precept. In Brazil, one cannot bring a direct action for unconstitutionality to challenge statutes enacted prior to the promulgation of the 1988 constitution. Therefore, because abortion was criminalized prior to the promulgation of the 1988 constitution the only way to challenge it is through an action called the Argüçâo de descrumprimento de preceito fundamental or as previously mentioned, an allegation of disobedience of a fundamental precept.

The basis for Barroso’s decision in decriminalizing abortion before the end of the first trimester was that criminalizing it violates a number of women’s fundamental rights, including sexual and reproductive rights and women’s autonomy, the physical and mental integrity of the pregnant woman, and the principle of equality.

Barroso’s decision comes at an interesting time for Brazil as they endure the most reported cases of zika than any other country. The zika virus has caused thousands of babies to be born with microcephaly and other fetal brain defects. Currently, the STF is in the process of deciding a case filed in August 2016 by the National Association of Public Defenders (ANDP) seeking judicial relief for women infected with zika. ANDP is asking the court to allow for women diagnosed with zika to interrupt their pregnancies and to allow for social assistance for all children and mothers who are victims of zika.

While the November 29th decision is a huge development for Brazil and the first time the court has expressed a definitive opinion on abortion law it is still not binding precedent on the lower courts in Brazil. Because, Brazil lacks many of the procedural devices that the U.S. Supreme Court has such as stare decesis, the Court will need to decide more cases in a similar manner and then record their decision in a súmula viccolnates for it to become binding precedent. Therefore, while the November 29th decision is a very exciting decision for Brazil we will have to wait and see how the case filed on August 2016 is decided order to have a better idea of what the future of Brazilian abortion law holds.

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