Brazil: Supreme Court panel majority: Criminalization of abortion is incompatible with the Constitution

Many thanks to Marta Machado, a professor in the FGV Law School, São Paulo, Brazil, and researcher at the Brazilian Center of Analysis and Planning (CEBRAP), for summarizing this Brazilian judgment for subscribers of REPROHEALTHLAW:

Habeas Corpus n. 124.306 – Judged by 1st Panel of the Brazilian Supreme Federal Court on November 29, 2016.

The decision of the Brazilian Supreme Federal Court on November 29, 2016 was unexpected.  Advocates were then focused on the Court’s pending decision in the Zika Virus Case,* originally scheduled for announcement in early December but ultimately delayed until 2017. The November 29th decision held that the criminalization of abortion until the first trimester is incompatible with the Brazilian Constitution.

The November 29 case challenged the pre-trial detention of 5 doctors and nurses accused of having performed consented abortions. While two justices discussed only the absence of conditions for the detention, three others, Justices Luis Roberto Barroso, Rosa Weber and Edson Fachin, forming the majority of three in a five-judge panel, grounded their votes in the questioning of the criminalization of abortion itself.

According to the three-judge majority, criminalization of abortion offends the following fundamental rights of women: (i) autonomy, as women have the right to make their own existential and moral choices without State interference; (ii) physical and psychological health, as women suffer in their own bodies and minds the effects of the pregnancy. In the decision’s wording: “having a child only by determination of criminal law constitutes a serious violation of a woman’s physical and psychological integrity”; (iii) sexual and reproductive rights, as women cannot be obliged by the State to keep an undesired pregnancy; and (iv) gender equality – since men do not get pregnant, the only way to have gender equality is to respect women’s will in this matter.

The three-judge majority held that the criminalization also violates the proportionality principle, in following ways. First, it is not effective in protecting the life of the fetus. The criminalization has no impact on the number of abortions performed; it just prevents them from being done in a safe way. Second, the State can prevent abortion in a number of more effective and rights-compliant ways, such as reproductive health education, distribution of contraceptives and social assistance to women. Finally, criminalization generates social costs (including deaths, in addition to a number of other health problems) that override its alleged benefits. The decision stressed the particular impact of criminalization on poor women’s lives because they can generally only access clandestine clinics and unsafe procedures with high risks of mortality and morbidity.

Although this decision is limited to this particular case, and only reflects the understanding of one panel of judges and not the plenary of the Court, it has persuasive authority that has the potential to influence future cases. It is also the first time that three Brazilian Supreme Federal Court justices stated their positions in favor of decriminalization of abortion.

Official summary of the Nov 29, 2016 decision:  Noticias STF em português

Judge Luis Roberto Barroso’s leading vote online:  voto em português

Comment by Sexuality Policy Watch: online in English.    News report in English.

Summary of the claim in the Zika Virus Case – Direct Action of Unconstitutionality  n. 5581 – Sumario em português.

**Proportionality –  See, e.g.,  Veronica Undurraga, “Proportionality in the Constitutional Review of Abortion Law” chapter 4 in Abortion Law in Transnational Perspective: Cases and Controversies (University of Pennsylvania Press, 2014).  Capítulo em português.   Book in English.    Libro en Español.


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