Abortion is illegal in Brazil with only three exceptions: risk to the life of the pregnant person, fetus anencephaly (a condition in which parts of the fetus’ skull and brain don’t develop) and rape. In these cases, people can seek an abortion with no time limits.
But a new bill that Brazilian conservatives are attempting to push through seeks to declare all abortions performed after week 22 of the pregnancy as homicide – and punishable with prison terms of up to 20 years.
Rape carries a jail sentence of up to 10 years in Brazil, or up to 12 if serious physical violence is involved. This means a victim of sexual abuse who has a late abortion may serve twice as long in prison as their abuser, critics say.
As news broke that the proposed legislation – known as Bill 1904 – had been given emergency status to be debated and voted on by Brazil’s lower house last week, demonstrators took the streets to protest in major cities across the country.
Much of the anger centers on the fact that the proposed new law would mainly affect victims of rape – with a chilling effect particularly for child victims.
There were 75,000 reported cases of rape in Brazil in 2022, the latest year for which official records have been published. This is the highest number on record – and more than 60% of the victims were children under the age of 13.
While these children are currently entitled to a legal abortion, 38 girls aged 14 or younger give birth in Brazil every day, according to the minister of women, Cida Gonçalves. This number would likely increase under the new law.
Though children under the age of 18 cannot be found criminally liable in Brazil, the new law would likely further limit rape victims’ access to abortion services in the country. There have long been enormous barriers to accessing abortions in Brazil, and the last government, led by the far-right politician Jair Bolsonaro, introduced new obstacles.
As the draft bill gained emergency status, it could be voted anytime since this week. Then, it should be passed by the Senate and signed into law by leftist president Luiz Inácio Lula da Silva, who has called the proposed punishment “insane”.
Public outrage, including continued demonstrations over the weekend, are putting pressure on Congress, with the speaker of the lower house, Arthur Lira, and the author of the bill, Sóstenes Cavalcante, both saying there’s no rush to schedule the vote.
Lula’s Workers Party did not initially appear to put any effort into fighting the bill, with conservatives emboldened by its silence. However, after much public outrage, Lula’s party is reaching out to right-wing legislators to try and have the bill shelved or the vote postponed.
See translated draft bill’s proposed changes to law below. To be clear, this is not an official translation, but a working translation to give English language readers an insight into how opponents of abortion are using legal strategies to deny women their rights.
DRAFT BILL Nº 1904, 2024
(By deputy Sóstenes Cavalcante)
The National Congress decrees:
Art. 2º The article 124 of the Decree-law number 2,848 of 7 December, 1940 – the Penal Code shall come into force with the addition of the following paragraphs:
“Art. 124 – Causing abortion herself or consenting to another to cause it:
“§ 1 When there is foetal viability, presumed in pregnancies of more than 22 weeks, the penalties shall be applied in accordance with the offence of simple homicide provided for in Article 121 of this Code”.
“§ 2 The judge may mitigate the punishment, as required by specific circumstances of each case, or may even not apply it, if the consequences of the offence affect the perpetrator himself so severely that the penal sanction becomes unnecessary.”
Art. 3º Article 125 of the Decree-law number 2,848 of 7 December, 1940 – Penal Code shall come into force with the addition of the following sole paragraph:
“Art. 125 – Causing abortion, without the consent of the pregnant woman:
…………………………………………………………………………….”
Sole paragraph. When there is foetal viability, presumed in pregnancies over 22 weeks, the penalties shall be applied in accordance with the offence of simple homicide provided for in Article 121 of this Code”.
Art. 4º The sole paragraph of art. 126 of Decree-Law no. 2848 of 7 December 1940 – the Penal Code is renumbered as the first paragraph and the following second paragraph is added:
“Art. 126 ……………………………………………………..”.
“§ 1º …………………………………………………………….”
“§ 2º When there is foetal viability, presumed in pregnancies over 22 weeks, the penalties will be applied according to the offence of simple homicide provided for in Article 121 of this Code.”
Art. 5º Article 128 of the Decree-law number 2,848 of 7 December, 1940 – Penal Code shall come into force with the addition of the following sole paragraph:
“Art. 128 – Abortion performed by a doctor is not punishable:
…………………………………………………………….”
“Sole paragraph. If the pregnancy is the result of rape and there is foetal viability, which is presumed in pregnancies over 22 weeks, the exclusion from punishability provided for in this article shall not apply. ”
Art. 6º. This Law enters into force on the date of its publication.
Diana Cariboni is based in Uruguay and started writing for Tracking the Backlash in 2018. She is now Open Democracy’s Latin America editor, coordinating investigative reporting in the region. She was previously co-editor-in-chief of the IPS news agency and led its Latin America desk for more than ten years. She wrote the book ‘Guantánamo Entre Nosotros’ (2017) and won Uruguay’s national press award in 2018. Follow her on Twitter (@diana_cariboni). Contact her at diana.cariboni@opendemocracy.net with tips for new stories in Latin America.
This article appeared originally in Open Democracy – https://www.opendemocracy.net/
