Brazil’s Supreme Court has postponed a debate on decriminalizing early-term abortion, leading feminists and rights advocates to warn that the justices will be responsible for the deaths of more women and girls in the country.
Abortion in the country is punishable by up to three years in prison, and is allowed on only three grounds: rape, risk to the life of the pregnant person, and – following a 2012 Supreme Court decision – when the fetus suffers anencephaly, a fatal birth defect.
It seemed like change was finally on the horizon in September, when then Supreme Court president Rosa Weber, who was on the verge of retiring, opened a virtual plenary session and voted to decriminalize abortion within the first 12 weeks of pregnancy.
Weber argued that the penal code is in conflict with the constitution, as it violates women’s rights to equality, non-discrimination, privacy and health, particularly sexual and reproductive rights.
But soon after, Weber’s replacement as the court’s president, justice Luís Roberto Barroso, froze the virtual debate, kicking the issue into the long grass with a promise to schedule in-person sessions at an unknown future time.
Some believe Justice Barroso’s postponement is strategic, as it’s unclear if there is a pro-choice majority within the 11-member court. His decision has been met with fury from women’s rights activists, who say women and girls cannot afford to wait any longer for safe access to abortions.
Anthropologist Débora Diniz, the founder of Instituto Anis de Bioética, a non-profit that works to defend reproductive and sexual rights, said that “the time is now” for decriminalizing abortion.
Brazil’s 1940 penal code, which predates the 1988 constitution that enshrined access to health as a fundamental right, criminalized abortion. Since then, women have faced persecution and unsafe terminations.
Today, one in every 28 women in Brazil who are admitted to public hospitals after having an unsafe abortion or due to post-abortion complications will die, according to research published by Gênero e Número, a data journalism outlet on gender and race.
The risk is twice as high for women of color, who “are at a greater disadvantage than white women in terms of access to services and will end up making more radical decisions that lead to death”, says Emanuelle Goes, an epidemiologist and associate researcher at the Center for Data and Knowledge Integration for Health of the Oswaldo Cruz Foundation, Brazil’s leading public agency on health sciences.
In announcing the debate, Weber said: “Unsafe abortions and their increased risk of mortality reveal the disproportionate impact of the rule that punishes voluntary terminations of pregnancy” because of gender but also of “race and socioeconomic conditions.”
The then-justice also pointed out that there’s no absolute protection for fetuses or embryos in the Brazilian constitution, which grants fundamental rights only to “born” people.
Condemning the Supreme Court justices who have since shut down Weber’s efforts at decriminalization, Diniz said: “Those in power are held responsible for letting people die, for letting people suffer. These judges have to sign off this chapter of history.”
Women and girls can’t wait longer
More than half of Brazilian women who have abortions are under 20, with 46% aged between 16 and 19 and 6% between 12 and 14, according to the 2021 national abortion survey. As the age of consent in Brazil is 14, anybody younger than that who falls pregnant is considered a victim of rape and has the right to an abortion.
But access to this right is being hindered by medical and law enforcement staff denying care based on their personal beliefs, as well as a lack of services in public hospitals and harassment by ultra-conservative activists.
In 2020, a ten-year-old who had been raped was denied abortion care in São Mateus, a municipality in north-east Brazil, even after securing permission from the courts to have the termination. She and her family were forced to travel to another city to get a legal abortion.
But the girl’s ordeal still wasn’t over. She was publicly exposed on social media, prompting religious fanatics to storm the hospital shouting ‘murderers’. The then-minister for women and human rights, Damares Alves, also dispatched members of her team to the scene to try to prevent the abortion.
Alves, now a senator, was a member of Jair Bolsonaro’s far-right administration, which introduced a series of measures to impede access to legal abortions. These included ordering health staff to call the police when a sexually abused patient requires a legal abortion and to offer the patient an ultrasound to “see the foetus or embryo”.
Bolsonaro was defeated by leftist leader Luiz Inácio Lula da Silva in the 2022 election. But Brazil is still emerging from the consequences of his presidency, which led to draconian policies being implemented and brought about years of democratic instability – including the 8 January attempted insurrection – that coincided with a devastating pandemic.
“Despite women experiencing a time of urgency, political time is more complex,” Diniz said. “In a racist patriarchy, there will never be a time for men to judge abortion, they will always say that this is a dangerous moment for that.”
“We have an army”
The fight for legal abortion has prompted intense debate between feminists movements such as the Nem presa nem morta campaign (‘Neither imprisoned nor dead’), which launched in 2018, and ultra-conservative and religious actors.
Soon after Weber opened the debate on decriminalization, the far right, which is strong and well-organized in Congress, launched an attack on the Supreme Court, while the Catholic National Conference of Bishops urged the court to dismiss the debate.
On 8 October, Brazil’s national ‘Day of the Unborn’, a special session on abortion took place in the Senate in protest at Weber’s decision.
Senator Malta compared the judiciary with a dictatorship and claimed the court wanted to force Congress into a ‘subordinate’ role in defining public policies on drugs and abortion. He also accused Justice Weber of voting for legalizing “the death of the innocents”.
The far right has also blackmailed Lula’s government, which does not have a majority in Congress. In the presidential race, Lula tried to appease the conservative electorate with promise that he would not change the existing abortion regulation. In a session in the Chamber of Deputies in August, far-right members ordered Lula to fulfil that promise or face a “war on the executive”.
Deputies Eduardo Bolsonaro – the son of the former president – Bia Kicis, Marco Feliciano, Silas Câmara and Chris Tonietto and senator Magno Malta threatened to org anise street demonstrations and hold sessions and debates in Congress against any decision to decriminalize abortion or marijuana or grant trans youth access to gender healthcare.
“We have an army, a well-disciplined, well-trained army that knows how to exercise its prerogatives,” Câmara said. “If they [the Supreme Court and the president] dare to confront us, they will have us united and playing our part as people who are absolutely certain that Brazil is better off in the arms of our supreme being, God”.
Holding a rubber replica of a fetus, Malta claimed that women and fetuses should have the same rights, saying: “Women’s day should be the day of the womb.” Speeches in similar threatening tones continued for over an hour.
More than 40 anti-abortion or Christian parliament members have since filed a request for a referendum that would ask: “Are you in favor of legalizing the crime of abortion?”.
They claim the Supreme Court is overstepping its powers and covertly legislating by attempting to rule on the criminalization or not of abortion.
Diniz disagrees, saying: “The constitutional review of laws is something the Supreme Court does every day, and it should not be confused with legislating.”
The request for a referendum must be approved by both the Senate and the House of Representatives and is now being considered by the Constitution, Justice and Citizenship Committee.
Changing opinions
One in seven 40-year-old women in Brazil has had at least one abortion during their lifetime, according to the 2021 National Abortion Survey coordinated by Diniz, Marcelo Medeiros, a visiting professor at Columbia University, and Alberto Madeiro, a professor at the State University of Piauí.
Although people of all social, ethnic and age backgrounds have abortions, they are more common among vulnerable groups, including Black and Indigenous women, those living in the poorer north and north-eastern states, those who are less educated and the youth.
Of those respondents to the survey who have had abortions, 43% said they were rushed to hospital to complete abortion procedures or for treatment for post-abortion complications after they resorted to unsafe methods imposed by the criminalization.
The risks are greater for women and girls who rely on public hospitals, which often have worse infrastructure than private hospitals and whose staff are more likely to refuse to carry out abortions or involve the police.
But when it comes to the point of what people think on abortion, Diniz believes pollsters have been generally biased and have framed questions to give them the answer they want.
“The question is asked in a context of criminalization: ‘Are you for or against abortion?’ It takes a lot of courage to say you’re in favor,” she said. Some 70% of respondents to a survey last year said they were not in favor of abortion when the question was asked this way.
But when the question is phrased differently, it produces a very different result.
Researchers at the Feminist Studies and Advisory Center, think tank Sexuality Policy Watch Brazil and the Center for Public Opinion Studies analyzed opinion polls by the Instituto da Democracia between 2018 and 2023 that asked: “Are you in favor or against imprisoning women who have abortions?”.
Their findings suggest the number of people who are against imprisonment for abortion is growing across all demographic groups, including those that have previously been overwhelmingly in favor of imprisonment, such as Catholics and Evangelicals. In polls carried out this year, 59% of all respondents said they were against imprisoning women.
“Empathy with women who have abortions has grown during the Bolsonaro era, when the position against abortion became a state policy,” said researcher and feminist activist Sônia Corrêa, the coordinator of Sexuality Policy Watch Brazil.
Corrêa thinks the harassment endured by the ten-year-old girl from Espírito Santo who needed an abortion in 2020 also played a role in changing attitudes. “The conversation about decriminalization and support for making the law more flexible has grown a lot. Among young people, it rose from 60% to 80%.”
Diniz is a co-author of a 2017 lawsuit – filed by the left-wing Socialism and Liberty Party and Instituto Anis – that sparked Weber’s decision to open a court debate.
The suit, known as ADPF 442, was the first action brought to a Latin American high court that questioned the constitutionality of abortion being a crime. But action has stalled in Brazil, while women in other countries in the region have achieved progress in their fights for decriminalization.
Mexico’s Supreme Court, for example, ruled in 2021 that women who have abortions should not be punished, and removed the offence from its federal penal code this September. Last year, Colombia’s constitutional court decriminalized abortion in the first 23 weeks.
For women’s movements in Brazil, Weber’s vote held promise after five years of silence. Now, many feel they are back to square one. “Even the UN has declared that sustaining a pregnancy against the will of the woman can be tantamount to torture”, Diniz said.
Feminists argue that to now win change on abortion, the issue must be detached from the political discourses of moral panic and religious taboo. For Diniz, other Supreme Court justices must keep up Weber’s fight for decriminalization. Anything else, she said, would keep Brazil stuck in “a cowardly time” in which women “suffer and die”.
Andrea Dip is a Brazilian investigative journalist and author. Based now in Berlin, she is a member of the International Research Group on Authoritarianism and Counter-Strategies of the Rosa-Luxemburg-Stiftung and a guest researcher at the Margherita-von-Brentano-Zentrum of Freie Universität. Dip investigates Christian fundamentalism in Latin America, its impacts on women’s and LGBTIQ rights, and the connections between religion, authoritarianism and ultraconservatism.
