Minister Rosa Weber, president of the Federal Supreme Court (STF), voted yesterday in favor of the decriminalization of abortion up to the 12th week of pregnancy. For her, “unrestricted criminalization reaches the core of women’s rights to freedom, self-determination, intimacy, reproductive freedom and dignity.” “There is no talking about the value of life without also considering women’s rights and their dignity as fundamental and human rights.”
Luís Roberto Barroso asked for prominence afterwards and interrupted the vote. With this, the trial will be transferred to the physical plenary. The trial was opened at midnight in the virtual plenary session and would continue until the 29th. Ministers are analyzing an action filed by PSOL. Legislation allows abortion in only three situations – sexual violence, risk of death for the pregnant woman and fetus with anencephaly.
Punion
For Rosa, articles 124 and 126 of the Penal Code are not in accordance with the current Federal Constitution. In his opinion, it is disproportionate to impose a prison sentence of 1 to 4 years on the pregnant woman, if she causes the abortion on her own or authorizes someone else to do so, and also on the person who helps or performs the procedure. At another point, the minister says that “the option for motherhood may even reflect a discriminatory gender structure, based on the hierarchical concept of family and the distribution of static social roles.”
One of the points highlighted by the minister is the lack of consensus on the moment of the beginning of life. For her, the argument of the right to life from conception, as defended by some sectors, especially religious ones, “does not find legal support in the Brazilian constitutional design”.
Reaction
As yesterday said,Estadão Column, the conservative bench in the Chamber is already articulating the vote on a project that prevents the termination of pregnancy and establishes the Statute of the Unborn Child. The opposition warns that it will obstruct the voting agenda to demand its right to legislate. As found out by theEstadãodeputy Chris Tonietto (PL-RJ) has already obtained 183 of the 257 signatures needed to include the Statute in the next agenda of the plenary, due to a request of “extreme urgency”.
The text of bill (PL) 478/2007, in progress in the House since 2007, provides that the unborn child has “the right to life, physical integrity, honor, image and all other personality rights”, from from the moment it is conceived. In practice, it ends the permissions for termination of pregnancy that are currently permitted. The criminalization of abortion in cases of rape is mentioned in article 13 of the text, which further adds that, if the abuser is identified, he will be responsible for paying “alimony equivalent to 1 minimum wage until the unborn child is 18 years old”.
Iinvasion of competence
Even in the debates prior to the vote, groups opposed to abortion argued that the issue should not be discussed in the Judiciary, but in the Legislature. Therefore, the Court does not have jurisdiction as a “supplementary legislator”, as argued by Ives Gandra Martins by the Union of Catholic Jurists of São Paulo (Ujucasp). The same analysis was made in a public note, this month, by the National Conference of Bishops of Brazil (CNBB).
The rapporteur of the action at the Supreme Court highlighted that, despite the competence of Congress, the Judiciary is constitutionally obliged to face any legal question presented to it regarding injury or threat to the rights of either the majority or minorities. “In democracy, the rights of minorities are protected, by the Constitution, against harm that may be caused to them by the will of the majority. In Brazil, this task falls to the Federal Supreme Court”, she stressed.
Rosa Weber is the rapporteur for the action, but is compulsorily retiring from the STF at the end of the month. Her interlocutors say she would not like to leave the court without voting on the issue. The minister called public hearings to debate the decriminalization of abortion in 2018. At the time, she stated that the issue needed “maturing”, but promised that the court would not leave society without an answer.
Rosa had already defended, in the trial of a specific case in the 1st Panel, in 2016, that the voluntary termination of pregnancy in the first trimester is not a crime. In her vote yesterday, the minister reaffirmed her position. She argued that public authorities must promote and protect the sexual and reproductive rights of women and adolescents from the perspective of public health and human rights.
“The full and effective protection of women’s right to health, including their reproductive health, also encompasses the right to the safe procedure of voluntary termination of pregnancy, in its initial stage, as a precise measure to reduce maternal mortality”, he argued.
The minister argued that failure to use safe contraceptive medications and procedures cannot, in itself, generate criminal liability for women. “Failure in contraception, I repeat, is a phenomenon completely beyond the woman’s control. By demanding and regulating conduct in this way, responsibility with excessive and unmeasured restrictions is imposed on women, since the safety of medicines or contraceptive procedures”, says another part of the vote.
Ilusion
Throughout the 129 pages, the president of the STF also defended that the criminalization of abortion is an “illusory” solution to the problem. “Criminalization proves to be an inefficient and inadequate protection in reducing the social stigma of discrimination, as well as in shaping the structuring policies of the reproductive social justice system, based on accessibility, equal supply and women’s autonomy in conducting planning family and your life project.”
E now?
There is no date for the resumption of the discussion, which depends on the inclusion of the case on the agenda by the President of the Court. The tendency is for the case to be kept in the drawer for some time. The change in the decision-making environment does not affect the vote of Rosa Weber, rapporteur of the action. She was able to leave the vote because the Supreme Court approved, in June 2022, the rule that allowed votes cast in virtual mode by ministers who subsequently leave office will be valid, even with the migration to the physical plenary. The STF’s internal regime defines that the vote must be resumed from the beginning when there is a request for prominence.
The minister made a point of maintaining the action in her own office when she assumed the presidency of the Federal Supreme Court. Generally, the collection of cases is passed on to the minister who is being replaced in charge of the court.
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