—Richard Albert, Boston College Law School
Last month, we announced that I-CONnect would host a special symposium on a recent abortion decision in Brazil. 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.”
Today we are pleased to publish a special global symposium on this abortion ruling. The symposium features comments from scholars around the world 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.
First, immediately below, we publish the syllabus of the case. The full judgment, translated into English, is available here: Brazilian Abortion Ruling–Translation. We then publish comments from the following scholars:
- Rebecca J. Cook and Bernard M. Dickens, both of the Faculty of Law at the University of Toronto;
- Chao-ju Chen, National Taiwan University College of Law;
- Grégor Puppinck, Director of the European Centre for Law and Justice in Strasbourg, France;
- Debora Diniz from the University of Brasilia and NYU Law School, and Christine Ricardo from the Yale Law School; and
- Rachel Rebouché, Temple University Beasley School of Law
We thank Justice Barroso and his Chambers for generously providing, at our request, the syllabus and translation for his majority opinion in this case.
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.
Rebecca J. Cook and Bernard M. Dickens
Faculty of Law, University of Toronto, Toronto, Canada
The link between prospective Brazilian criminal law and the historical growth of English Common law is not immediately obvious, but the 2016 majority decision of the Supreme Federal Court of Brazil (the Supreme Court) in Writ of Habeas Corpus invites reflection on a common evolutionary trajectory. A celebrated historian of English law traced legal development to intricate procedures of litigation, famously observing that “substantive law has at first the look of being gradually secreted in the interstices of procedure”. Awareness of a law’s history and appreciation of how it is currently assessed allow projection of what its future content may become. The Supreme Court’s majority decision provides a foundation for considering how Brazilian criminal abortion law has developed. The case involved an application for release from pretrial detention of operators of an abortion clinic facing prosecution for violation of the criminal prohibition of voluntary termination of pregnancy. The habeas corpus application was procedurally not available, but the judicial majority ordered the operators’ release ex officio on the ground, among others, that the Criminal Code provisions could not be construed under the Constitution of Brazil to prohibit abortion during the first trimester of pregnancy. Criminalization was found to violate several fundamental rights of women, and the principle of proportionality.
The Supreme Court’s majority found incompatibility between the Criminal Code’s prohibition of abortion (except to protect life and in cases of rape and incest) and women’s fundamental constitutionally protected sexual and reproductive rights, including their rights to autonomy, to physical and psychological integrity, and to gender equality. The majority recognized the legitimacy of the state’s claim to protect unborn human life, but also of women’s claims to lawful relief from compulsion to continue unwanted pregnancies, and to control of their own bodies, minds and futures. The majority mediated between interests of the state and women’s interests in respect for their fundamental rights, by applying the principle of proportionality to show women’s exclusion from liability under the Criminal Code during the first trimester of pregnancy. The Court summarized that its reasoning “demonstrated that the criminalization of the termination of pregnancy in the first three months violates the nucleus around which a number of fundamental rights of women revolve. It is, therefore, a restriction that extends beyond constitutionally acceptable limits”.
The judgment construed women’s constitutionally protected rights in the context of sociological data. It observed that, although Criminal Code prohibitions are defended on grounds of protecting unborn human life, they fail in this justification since international experience shows it “notorious that abortion rates in countries where the procedure is legal are very similar to those found in countries where it is prohibited”, and may be lower. Conditioning the judgment was awareness that in Brazil impoverished women were disproportionately burdened by the criminal prohibition, since “middle- and upper-class women, who have the means to seek a private clinic, can count on a wide net of abortion and post-abortion services–clandestine in many cases but also a few that are somewhat more mainstream—usually undisturbed by the legal prohibition or enforcement agencies”.
Reinforcing the judgment allowing legality of first trimester abortions was Brazil’s acceptance of decisions of the Inter-American Court of Human Rights, which in 2012 accepted evidence from a Court-appointed scientific expert witness that “[o]f every 10 embryos spontaneously generated in the human species, no more than 2 or 3 are able to survive natural selection and be born as a person”. Such high rates of spontaneous embryonic loss early in pregnancy underscore the disproportion of denying women their fundamental rights and burdening their lives by penalizing induced first trimester abortion. The Supreme Court’s judgment opens the way to Brazil joining countries in the global south and north in recognizing the gendered and socio-economic injustices of the disproportionate application of the criminal law to regulate abortion.
 Habeas Corpus 124.306 – Judged by 1st Panel of the Brazilian Supreme Federal Court on November 29, 2016.
 H.S. Maine, Dissertation on Early Law and Custom (1886), cited in T.O. Main, The Procedural Foundation of Substantive Law, 87 Washington University Law Review (2010) 801- 41 at 807.
 Citing V. Undurraga, Proportionality in the constitutional review of abortion law, in R.J. Cook, J.N. Erdman and B.M. Dickens, Abortion Law in Transnational Perspective: Cases and Controversies, University of Pennsylvania Press 2014, 77-97.
 Note 1 above, para. 11.
 Ibid. para.35.
 L.R. Barroso, Bringing abortion into the Brazilian public debate: legal strategies for anencephalic pregnancy, in R.J.Cook et al., note 3 above, 258-278 at 261.
 Artavia Murillo at al. v. Costa Rica (“In Vitro Fertilization”), judgment of November 28, 2012 (Inter-American Court of Human Rights).
National Taiwan University College of Law
The Brazilian Supreme Court’s decision, authored by male Judge Luis Roberto Barroso, is a progressive one. It speaks a feminist voice, building women’s right to abortion on four cornerstones: women’s autonomy (the power to control her own body and to make decisions about it), women’s right to physical and psychological integrity (preventing harms resulting from unwanted pregnancy), women’s sexual and reproductive rights (enjoying active and fulfilling sexual life), and gender equality (women’s subordination to men). It speaks an intersectional voice, recognizing the matrix of gender and class oppression exemplified by criminalization’s disproportionate impact on poor women.
The Court’s remarkable treatment of women’s right to abortion as the right of both freedom and equality is a progressive move not only because of its preference for decriminalization that would free women’s reproductive choices from state intervention (freedom through state nonintervention), but also because of its affirmative recognition of state responsibility to provide assistance that would empower women’s reproductive choice (equality through state actions). Its adoption of the intersectional approach takes a step further to make differences among women visible and explains the necessity of state actions to ensure poor women’s access to safe and affordable abortion, as well as access to daycare and the right of social assistance.
From the perspective of Taiwan, a country where the legalization of abortion in 1984 was primarily informed by the government’s anti-natalist policy and where recent reproductive policy debates are closely associated with the crisis of low-fertility, the Brazilian Supreme Court’s human rights approach to population policy is also worth celebrating. Citing the 1994 Cairo declaration on population and development, the decision highlights the definition of reproductive rights and therefore rejects the instrumental use of women for state population policy. This is indeed a decision that should be one of the leading voices in the global fight for women’s right to abortion.
This decision, however, has two dark sides. First, in the Court’s application of the principle of proportionality, it is argued that alternative measures that are effective and less harmful should be considered, and the German legislation of “reflective period” is cited as an example. It seems that the Court is unware of the feminist criticism against “reflective period” or “waiting period,” a policy that serves to undermine women’s right to abortion, rather than to facilitate women’s deliberation. In Taiwan, the government’s proposal of introducing the “waiting period” and “mandatory counselling” had faced strong opposition from the feminist community, and the proposed bill failed to pass the legislature.
Second, the Court’s legal reasoning bears an unfortunate resemblance with its counterpart in Taiwan, where most lawyers find it difficult, if not impossible, to make arguments without referring to and looking up to jurisprudence of “developed and democratic country” or “the democratic and developed world.” The Brazilian Supreme Court’s recognition of women’s right to abortion seems to be accompanied by its desire to enlist Brazil in the “the democratic and developed world.” Under the shadow of “northern” legal hegemony, this progressive voice from the south speaks in a tone that reflects the global hierarchy of knowledge and power.
“Giving birth to a child by the imposition of criminal law”: When Subjectivism Leads to Absurdity
Grégor Puppinck, Ph.D.
European Centre for Law and Justice
This decision is a typical case study for it reproduces most of the current arguments supporting the liberalisation of abortion.
The philosophical introduction to the decision shows the will to act beyond justice, in issuing a “moral” decision against the cultural heritage of centuries, presenting abortion as an individual freedom. It expresses a fundamental philosophical choice overstepping the question of birth control: the domination of individual will over being, of voluntarism over metaphysics; a choice at the basis of postmodernity.
The result of this choice is that the human being will be valued in proportion only to the will of which he is first the object and then the subject. His existence is thus worth within the project that the adult is able to form towards him, then within his level of consciousness, namely of autonomy. What has a value in itself would not be life, which is shared with the least evolved animals, but the level of personal consciousness emerging from life. Those who keep recognising a value to human life in itself, independently of conscience, would only be subject to superstition. Neutrality for the State would then be to renounce protecting the preborn child’s life in leaving to everyone the choice to abort or not.
The approach of the Court relies on an inversion: the subjectivisation of human life and correlative objectivation of individual will.
While penal law protects concrete human individual nascitūrus against wilful attacks to their lives, the Court reduces the object of this protection to the sole ‘life’ considered in abstracto. It introduces a subjective definition of life, alternative to the biological definition, in identifying it to individual conscience (§ 21), which would be a progressive phenomenon of humanisation justifying a proportionate and progressive protection (§ 47). It then asserts being faced with an epistemological incapacity to decide between these two approaches, though presenting the former as an irrational and archaic view based on “dogma, values and beliefs” (§ 37). This reduction of the value of human life to the capacity of its conscience induces a correlative reduction of its protection which is yet supposed to be, before as well as after birth.
On the contrary, the Court gives individual will an objectivity legally binding to society, in the form of the right to autonomy.
This philosophical premise establishes an asymmetry between the value of life and that of individual will, but this is not enough for the Court to conclude in this case to the primacy of the individual will on human being.
It also ignores aspects of reality:
- The Court ignores the biological and ontological difference between the woman and the human being she carries, when it assumes that her autonomy may be exerted on him (§ 24).
- The responsibility of the woman as regards pregnancy is also ignored.
The Court reasons abusively as if pregnancy results from a “heteronomous imposition” upon women by the prohibition of abortion. How can “giving birth to a child by the imposition of criminal law” (§ 26) be possible? The penal law cannot force “to carry an unwanted pregnancy” (§ 29). Its aim is not to force someone to act, but to prevent from acting, harming the nascitūrus.
The reduction of the person (body, intelligence and will) to his sole will also results for the Court in the absurd consequence of asserting that pregnancy per se violates “gender equality”, as if biological differences were injustices needing to be “neutralised” (§29) like social injustices.
The ideal of freedom towards which this subjectivism aims is not human: it is that of angels who have neither body nor sex, and whose whole personality identifies in will; it is an ideal of disincarnated freedom.
Finally, it is also worth signalling that:
- Against the assessment in §§ 28 and 44, maternal mortality is often lower in countries prohibiting abortion. In Chile, maternal mortality went down by almost 50% after the prohibition of abortion, reaching 22 deaths in 100,000 deliveries, twice lower than in the United States. It is also much lower in Ireland and Poland than in most European countries.
- Contrary to the assessment of the Court, it is impossible to see how measures such as “the decriminalization of abortion in its initial stage” and the “free distribution of contraceptives” can “be alternative to criminalization that would be equally protective of the right to life of the [embryo or] fetus” (§ 40).
 E. Koch, J. Thorp and al., “Women’s Education Level, Maternal Health Facilities, Abortion Legislation and Maternal Deaths: A Natural Experiment in Chile from 1957 to 2007”, PLoS ONE, Vol. 7, No. 5, e366613, May 4, 2012.
 Id., p. 70.
One Decision Closer to Decriminalization?
Debora Diniz, Professor of Law at University of Brasilia; at Law Faculty, NYU (Winter, 2017);
Christine Ricardo, Lecturer in Law at Yale Law School and the Clinical Fellow for the Global Health Justice Partnership
With the recent decision about the pretrial detention of providers of clandestine abortions, the First Chamber of the Supreme Court of Brazil has both continued and expanded upon more than 10 years of constitutional jurisprudence related to the issue of abortion. The Nov. 29 habeas corpus ruling has two important predecessors: the 2008 decision on the use of frozen embryos in stem cell research and the 2012 decision on abortion in cases of anencephaly. Both the 2008 and 2012 rulings grappled with the constitutional parameters of the right to life and are widely recognized as landmark decisions and compelling precedent for challenging the criminalization of abortion. We briefly discuss the two rulings below and how the habeas corpus ruling further advances constitutional analysis in support of the right to abortion.
In ADPF 54, the Court decided in an that women had a constitutional right to an abortion in cases of anencephaly, a condition that impedes the full development of the brain and skull. Because the impacts are so severe, almost all anencephalic fetuses are miscarried, stillborn, or die within hours or days after birth. Although the ADPF 54 petition was submitted in 2004, the case was not ultimately decided until 2012. The crux of most of the Justices’ opinons was that, because an anencephalic fetus did not have the potential for survival outside the uterus, the procedure for terminating a pregnancy in such cases did not qualify as an abortion as defined by the penal code (i.e. a crime against a “life”). To punish women or physicians in such situations would therefore be a violation of their constitutional rights.
During the period that the anencephaly case was pending, the Court addressed the issue of the right to life in a case about the use of frozen embryos obtained via assisted reproductive technologies for stem cell research. The central question of ADIN 3.510, which was proposed by the Attorney General in 2005 and decided in 2008, was whether the constitutional right to life commenced at fertilization. The voted unanimously in support of the use of embryos for stem cell research, with 6 specifically holding that such use did not violate the constitutional right to life. Several of the Justices reasoned that fertilization itself was not sufficient for legal status as a person, but rather it was necessary, for example, for there to at least be the possibility of viability (e.g. being implanted in a human uterus, having a brain) or birth.
Together, ADPF 54 and ADIN 3.510 provide a strong jurisprudence in favor of decriminalization of abortion in the first trimester (and arguably up to fetal viability). Having previously grappled with whether fertilized embryos and non-viable fetuses have legal status as human persons, the Court, in this specific case the First Chamber, was thus uniquely poised to further develop the jurisprudence, expanding it to include innovative arguments about criminalization as a concern for gender equality as well as proportionality (a framework the German Court ).
While the earlier rulings about the right to life had been mainly grounded in judicial intuition and decision-making, the analysis of proportionality is rooted in empirical data and considers effectiveness, availabilty of alternative measures, and the balance of harms and benefits. As Justice Barroso writes, the criminalization of abortion falls short by all three standards. Criminalization in Brazil (as throughout the ) not only fails to prevent abortion, but also creates enormous inequities and harms. It is no coincidence that the issue of abortion once again landed on the Court’s docket because of a case involving the provision of clandestine abortion. Despite Brazil’s restrictive laws, around have had an abortion by the age of 40, and, in 2015 alone, approximately women had an abortion – the vast majority of which were clandestine. As the opinion notes, while women with financial resources can obtain safe albeit illegal abortions, women who are poor (including women from rural areas and women with little schooling) often have to resort to unsafe procedures, risking their health and lives. Moreover, due to the ways in which regional and socio-economic disparities intersect with race and ethnicity, a disproportionate number of the women who suffer abortion-related complications or deaths are Black, Brown, and Indigenous.
In sum, although last year’s ruling is not binding beyond the particular case, it is certainly a tremendous development in the Court’s constitutional analysis on abortion and arguably further tips the jurisprudence toward decriminalization.
When the Local and Global Meet
Temple University Beasley School of Law
For many readers, I suspect the Federal Supreme Court’s recent decision on abortion was surprising. Brazil criminalizes all abortion, punishing both providers and patients, except in cases of rape and danger to the woman’s life. The panel’s decision – that punishing first trimester abortion violates women’s fundamental rights – is no doubt a bold as well as controversial interpretation of Brazilian law. The panel opinion did not strike down the penal provisions on abortion. But the opinion establishes a precedent that lower courts can follow, and it may have opened the door for a similar decision by the entire Court.
What is not surprising is the panel’s description of women’s fundamental rights, especially when viewed through the lens of contemporary reproductive rights advocacy. Abortion rights, especially early in pregnancy or on limited grounds, are now a fixture of human rights law. The Court, for instance, identifies the International Conference on Population and Development and the Fourth World Conference on Women as two events, with resulting declarations, that advanced the mantra “reproductive rights are human rights.” ¶28.
The opinion shares much with the decisions of national courts that have upheld or struck down abortion restrictions. I have argued that contemporary cases rely on human rights for at least three reasons. First, justifying abortion law reform in terms of human rights tethers reproductive rights to universal values. “The nucleus around which a number of fundamental rights of women revolve” draws from the rights announced in international documents (and interpreted by human rights bodies). ¶31. According to the Court, Brazil’s abortion restrictions undermine women’s rights to autonomy, physical and psychological integrity, sexual expression, gender equality, and freedom from “social discrimination” against poor women. ¶¶24-31.
Second, human rights signal shared values that confer legitimacy based on consensus, mostly among North American and Western European countries. The panel’s decision offers an example: “the dominant view in the democratic and developed world is that the criminalization of voluntary termination of pregnancy seriously affects several fundamental rights of women.” ¶20. The Court highlights the legal permissions for first trimester abortions in the United States, Germany, Belgium, France, Uruguay and Mexico City as proof of consensus. ¶¶46, 47.
Third, national courts (as well as treaty-monitoring bodies) rely on human rights to balance women’s rights against fetal rights. The Court cites iconic cases from the United States, Germany, and Canada to assert that “protection of the unborn life does not outweigh the fundamental right of the woman to perform an abortion.” ¶¶39, 46. It moreover refers to pre-termination counseling in Germany, Portugal, France, and Belgium to note how legislatures balance respect for potential life and women’s rights. ¶41.
In addition to incorporating common human rights justifications, the Court offers reasoning that advances reproductive and sexual rights beyond what is typical in modern decisions. For one, the decision draws attention to the subordination of women’s sexuality, stating that “female sexuality alongside women’s reproductive rights has suffered millennia of oppression.” ¶27. And it considers how criminalization disproportionately harms women with limited financial resources. ¶30.
The Court’s argument for these and other rights-based claims also follows transnational trends. The panel cites iconic decisions that are thirty or forty years old – Roe v. Wade, R v. Morgentaler, and the pre-unification decision of the Federal Constitutional Court of Germany. ¶¶39, 46. The Court then describes the Brazil’s abortion debate in mostly global terms. The decision discusses studies on the worldwide incidence of illegal abortion, published by the World Health Organization and the U.S. non-profit organization, the Guttmacher Institute. ¶¶35-36. After citing articles from Brazilian publications, the Court begins its discussion of the “violation of the fundamental rights of women” with a lengthy list of journal articles and books written predominantly by American scholars. n.8.
What is striking about the Court’s discussion of women’s fundamental rights is its focus on law reform in the global North – “democratic and developed” states, to use the Court’s description. In this case, physicians and clerks were arrested for providing abortions with the consent of pregnant women. Who were these providers and who were their patients? Were they part of a broader effort to resist the law? Perhaps these are facts the panel did not or could not know. But the panel’s opinion coincides with stakeholders lobbying the legislature to permit pregnancy termination in light of the Zika virus. Is the clinic in this case responding to increased demand for abortion because of Zika infections? Or is this clinic indicative of a well-developed network for services in a country with changing cultural and religious mores?
A justification for abortion is not necessarily rooted in fundamental rights to autonomy or equality, but that pregnant women, across class lines and across the country, have contracted Zika with difficult to predict consequences. The current call for safe, accessible abortion not only highlights Brazil’s constrained recognition of women’s reproductive rights, but it also, and as importantly, highlights some of the shortcomings of a health system that may be unprepared to meet women’s current reproductive needs.
 Abortion Rights as Human Rights, 25 Soc. Leg. Stud. 765, 771-74 (2016); The Intersection of Human Rights and Reproductive Justice, 7 UC Irvine L Rev __ (forthcoming 2017).
Suggested Citation: I-CONnect Symposium: Five Perspectives on the Brazilian Abortion Ruling, Int’l J. Const. L. Blog, Mar. 7, 2017, at: http://www.iconnectblog.com/2017/03/symposium-on-brazilian-abortion-ruling-five-perspectives