—Richard Albert, Boston College Law School
Late last year, in an historic ruling for the region, the First Chamber of the Supreme Court of Brazil held that a criminal prohibition on procuring an abortion before the end of the first trimester violates the fundamental rights of women as well as the principle of proportionality.
Writing for the majority, Justice Luís Roberto Barroso wrote that “women bear alone the integral burden of pregnancy.” He continued: “Therefore there will only exist gender equality if women have the right to decide whether to continue a pregnancy or not.”
Later this month, I-CONnect will publish an online symposium on this controversial and important decision–controversial because the Court split 3 to 2 and the judgment has stirred much debate among lawmakers, and important because the judgment has broken new ground in the region. The symposium will feature perspectives from scholars around the world.
Below, we publish the syllabus of the case; the full translation will be published as part of the symposium.
WRIT OF HABEAS CORPUS 124.306 RIO DE JANEIRO STATE
JUSTICE LUÍS ROBERTO BARROSO:
Syllabus: Criminal procedure. Writ of Habeas corpus. Pretrial detention. Absence of legal requirements for its decree. Unconstitutionality of the incidence of the penal offence of abortion in case of voluntary termination of pregnancy during the first trimester. Release from custody. Order granted “ex officio”.
1. The writ of habeas corpus is not applicable to the case at bar. However, the situation demands that the order be granted “ex officio” on two grounds, for the purpose of releasing the defendants from pretrial detention.
2. First, the original pretrial detention does not meet the legal requirements for the measure, namely: risks to public or economic order, to the criminal investigation or to the enforcement of criminal law (article 312 of the Criminal Procedure Code). The defendants have no prior criminal record, have stable places of residence and work, and have obeyed all summons to appear before the court. Moreover, if convicted, the defendants will serve their sentences under day release conditions.
3. Secondly, it is necessary to construe Criminal Code articles 124 to 126 – which define the crime of abortion – in accordance with the Constitution, resulting in the exclusion from its scope of voluntary termination of pregnancy carried out in the first trimester. The criminalization, in this case, violates several fundamental rights of women, as well as the principle of proportionality.
4. The criminalization is incompatible with the following fundamental rights: the sexual and reproductive rights of women, who cannot be forced by the State to maintain an unwanted pregnancy; the autonomy of women, who retain the right to make their own existential choices; the physical and psychological integrity of the pregnant woman, who is the one that suffers the consequences of pregnancy in her own body and mind; and gender equality, given that men do not get pregnant, therefore, making it necessary to respect the woman’s will on this matter in order to achieve full gender equality.
5. Beyond these considerations, we must add the impact of criminalization on poor women. The treatment of abortion as a crime, provided for by Brazilian criminal law, prevents these women, who do not have access to doctors or private clinics, from turning to the public health system to obtain the appropriate procedures. As a consequence, cases of self-mutilation, serious injuries, and death multiply.
6. The criminalization also violates the principle of proportionality for reasons that are cumulative: (i) it is likely not adequate to protect the intended legal good (the life of the unborn), because it has no relevant impact on the number of abortions performed nationwide, and serves only to impede their safe practice; (ii) it is possible for the State to avoid the occurrence of abortions through more effective and less harmful measures than criminalization, such as sexual education, distribution of contraceptives, and support for the woman who wishes to carry the pregnancy to term but finds herself in adverse conditions; (iii) the measure is disproportionate in the narrow sense, as it produces social harms (problems with public health and deaths) that clearly outweigh its benefits.
7. Finally, virtually no developed and democratic country in the world considers the termination of pregnancy during the first trimester a crime, including the United States, Germany, the United Kingdom, Canada, France, Italy, Spain, Portugal, the Netherlands, and Australia.
8. Release from pretrial custody order granted ex officio, extending its scope to the other co-defendants.