Judges avoid speaking out, but old statements point to a majority in favor of anencephaly cases and the suspension of the CFM rule
As Congress moves forward on the issue of abortion, the ministers of STF (Supreme Federal Court) have avoided expressing themselves on the matter. However, several judges have already taken a position on other occasions or in judgments that dealt with the subject, which gives an idea of their understanding on the matter in the event of a future resumption of the decriminalization of abortion by the Supreme Court.
The CCJ (Committee on Constitution and Justice) included on the agenda for this Tuesday (2nd July) the vote on the bill (6831/10) which aims to toughen the sentence for those convicted of rape, increasing it to up to 30 years in prison. The deputies’ articulation comes at a time when there is a rejection on the part of society in relation to the PL that equates abortion with the crime of homicide.
The urgency of the PL (bill) 1904/24 was approved on June 12 in a lightning vote. The bill seeks to make the punishment for women who have abortions after 22 weeks of pregnancy, even if legal, equivalent to that of homicide. If approved, the law will result in women who are raped and have abortions spending more time in prison than their rapists.
Although the president of the Court said on June 14 that he would only comment on the bill if it reached the Supreme Court, Roberto Barroso briefly commented on the issue at an event in the United Kingdom on Saturday (June 22). He said he was against the idea of imprisoning women who have abortions. The minister defended the same position in a class in Rio de Janeiro in March. At the time, he said that “arresting a woman is useless” and that the problem must be faced in a more intelligent way than with criminalization.
The STF has a pending action pending judgment, which provides for the decriminalization of voluntary termination of pregnancy in the first 12 weeks (3 months) of gestation. The judgment was suspended at the request of the president of the Court, Luís Roberto Barroso, for more time for analysis, and has not yet been rescheduled. The only vote, cast by former minister Rosa Weber, then president of the Court, was in favor of decriminalization before her retirement.
Barroso said that, at this moment, there is no condition for the Court to make a decision that seems good to it prevail in relation to the action in the STF because of a “lack of support” in society.
“There is, as everyone knows, an action in the STF on the subject, in which I requested a review [mais tempo para análise], because at this moment we are not in a position to make the position that seems good to me prevail, also due to a lack of support in society in general”Barroso told SP Newspaper during the Brazil Forum UK 2024.
PROGRESSIVES
In the judgment of the 1st Panel, Barroso had already demonstrated a position in favor of decriminalization when he granted a habeas corpus to release those accused of performing abortions in 2016. At the time, Minister Edson Fachin followed Barroso’s vote and, in 2022, said there was “systematic violation” women’s rights after the Ministry of Health of the government of former president Jair Bolsonaro made available a pamphlet stating that there is no such thing as legal abortion.
Another person who had a favorable position on the matter was Gilmar Mendes, who voted in favor of the abortion of anencephalic fetuses (ADPF 54) in 2012 and the use of stem cells for research in 2008, as did Carmen Lúcia. Anencephaly is a malformation of the brain, characterized by the absence of the encephalon and cranial vault. Luiz Fux also voted in favor of the abortion of anencephalic babies.
In her vote, Minister Cármen Lúcia emphasized that “there is no legal right to be protected by the criminal law that can justify the total impossibility of a woman making a choice about terminating a pregnancy”.
For Gilmar Mendes, since the enactment of the Penal Code in 1940, Brazilian society has lived with the decriminalization of abortion in cases of rape and risk to the mother’s health.
However, Gilmar has already criticized Barroso when mentioning the decision of the 1st Chamber that revoked the preventive detention of 5 doctors and employees of an abortion clinic. This occasion led to a strange feeling among the ministers and resulted in the “viral” speech of the president of the Court: “Your Excellency is a horrible person, a mixture of evil, backwardness and hints of psychopathy.”
Dias Toffoli, while still the attorney general of the Union during the Lula government, was in favor of the abortion of anencephalic fetuses, as was Roberto Barroso, who participated in a hearing at the STF on the subject in 2008 while still a lawyer.
Alexandre de Moraes is the minister with the most activist position on the matter. In a preliminary (provisional) decision on May 17, 2024, the minister determined that the resolution of the CFM (Federal Council of Medicine), which prohibits doctors from performing fetal asystole [interromper os batimentos cardíacos do feto] in stations with more than 22 weeks resulting from rape, was suspended.
On Wednesday (June 19, 2024), 5 hospitals in São Paulo were summoned by Moraes to prove that they suspended the resolution 2,378 of 2024 of the CFM. According to Moraes, the procedure is recognized and recommended by WHO.
A Christian institution called the decision a “collective feticide of the unborn” when filing a habeas corpus petition with the STF, which was denied by Zanin, who upheld Moraes’ decision. However, the decision was based on the Court’s case law, which understands that an original habeas corpus petition to the STF is not admissible against an act of a minister or collegiate body of the Judiciary.
CRITICS OF DECRIMINALIZATION
Cristiano Zanin, minister appointed by Luiz Inácio Lula da Silva (PT) to the STF, during a hearing in the Senate in 2023, suggested being against the legalization of abortion. According to him, at the time, the right to life provided for in the Constitution must be preserved and the law must be followed. Two other ministers have already said that the case should continue to be followed by the definitions of the Legislature: Luiz Fux and Flávio Dino.
Dino has spoken out against abortion in several interviews and, during a hearing in Congress, highlighted his position against decriminalization because he believes that the right to abortion should be fully governed by the legislative houses and the current law maintained.
Nunes Marques also stated that he defended the right to life when he was questioned in the Senate about the issue. On May 31, he requested to be highlighted and took to the physical plenary the trial that analyzed Moraes’ decision that suspended the CFM rule.
Before the request, only André Mendonça had voted. The minister appointed by the former president Jair Bolsonaro (PL) to the STF opened a divergence and voted against the suspension of the rule.
For him, taking the fetus to cardiac arrest ensures the non-viability of “any survival” and the issue should not be a matter for the Judiciary. He also highlighted the opinion of the medical council on fetal asystole causing feticide.
ABORTION IN BRAZIL
Abortion is legal in Brazil only when there is a risk to the mother’s life, in cases of rape and in cases of anencephalic fetus. Article 128 of the Criminal Code, which authorizes the procedure, does not impose a gestational age limit. However, Articles 124 and 126 of the Criminal Code determine a sentence of 1 to 3 years for women who have an illegal abortion and 1 to 4 years in prison for doctors who perform the procedure.
This report was written by journalism intern Bruna Aragão under the supervision of assistant editorial secretary Simone Kafruni.
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