—Juliano Zaiden Benvindo, University of Brasília
It is commonly understood that “constitution-making tends to occur in waves,” as Jon Elster wrote in his fascinating paper Forces and Mechanisms in the Constitution-Making Process in 1995. Another very relevant perception is that constitutionalism has become over the years increasingly inclusive despite many exceptions worldwide and the various setbacks democracies have endured, especially in the last years. Indeed, the Democratic Index from The Economist Intelligence Unit pointed out that 89 countries went backwards in 2017 in their democratic credentials, after decades of triumph of democracy. Constitutional waves can thus take place in both ways. The difficulty appears when such waves occur in dyssynchrony with what would be expected from a certain context. This is the phenomenon that we can call constitutional dyssynchrony, that is, to a certain degree, some constitutional matters may move towards a direction that appears to be against the backdrop of a certain context. A constitutional dyssynchrony can happen when, for example, a conservative backlash occurs as a reaction to mass protests clamoring for social change in a context that seems to favor liberal constitutional change, or, on the contrary, when, during the rise of a more illiberal agenda in society and politics, a liberal policy gains momentum. As for this last hypothesis, a very interesting example is the current debate over decriminalizing abortion in Brazil – and in Latin America more broadly -, exactly when the region seems to be under a growing resort to conservatism. How can we understand such a paradox?
Since last month, a very interesting discussion of women’s rights and abortion has taken place on I-CONnect. Francisca Pou Giménez, just the day before the Argentinean Senate narrowly rejected legalizing abortion, had her column published emphasizing that the Argentina’s case strongly contradicts “the sort of diluted, narrow-minded majoritarian politics we assume to be the rule in the region.” Instead, as she remarks, “the strength, energy and reach of the political debate, and the interactions inside/outside Congress, have been outstanding” to the point that it proves that “when certain conditions are met, rights protection through majoritarian channels is possible and can further more profound and effective dynamics of social transformation.” A symposium on the Chilean Constitutional Court’s abortion decision provided five perspectives on the challenges Chile has faced in view of its Supreme Court’s ruling on the constitutionality of a bill that decriminalized abortion in three still very restrictive circumstances. Argentina and Chile follow a pattern that has popped up in the region, either through Congress (i.e., Uruguay) or the Judiciary (i.e., Colombia), and which has recently placed women’s rights in the middle of a heated clash of ideas embracing the various divides in society.
Brazil, which also has very restrictive legislation on abortion, has followed suit and is now moving towards a debate over abortion that has never before been seen in the country. The Socialism and Freedom Party (PSOL) filed in the Brazilian Supreme Court an abstract review claim aimed at decriminalizing abortion up until the twelfth week of pregnancy. As part of the procedure, on August 3rd and 6th, public hearings with representatives from civil society took place at the Supreme Court, where professors, scientists, human rights advocates, religious denominations, among others, could raise arguments before some Supreme Court Justices. Those public audiences are arguably aimed at providing the Court with diverse viewpoints on matters that normally foster moral disagreements, though empirical evidence has proven that they are way less effective than normally depicted.
Among the exponents, Professor Debora Diniz, from the University of Brasília and the leader of ANIS, a civil rights organization directly involved in matters of reproductive rights, and Lusmarina Campos Garcia, a Lutheran Minister, clearly stood out as supporters of the decriminalization of abortion, and the video of their talks went viral on social media. On the other side, however, the argument was very straightforward: besides the common defense of life from the moment of conception, the strategy was to defend Congress’s prerogative in this matter. The Catholic Church said that the “public hearing [was] aimed at merely legitimizing the activism of this Court.” Senator Magno Malta, a right-wing politician and an evangelical pastor adopted the same argument: “The Legislative Power makes the laws and this house (the Supreme Court) is the guardian of the laws. Each one has to acknowledge its role. In recent times, we have appallingly watched the judicial activism in the country.” The reaction in society has also been very intense. From the moment that the public hearings were scheduled to take place, there has been a visible surge of reactions from both sides in the social media, demonstrations from pro-life and pro-choice forces have intensified, and the press has covered the subject as possibly never before seen in Brazilian history.
Interesting enough, at least in the most influential media outlets, there seems to be a shift in favor of pro-choice arguments. In 2016, when the First Panel of the Supreme Court ruled in favor of decriminalizing abortion during the first trimester of pregnancy in a particular case involving people accused of working in an abortion clinic in Rio de Janeiro, such movement was already noticeable. Fantástico, a Sunday show that is widely watched in Brazil, carried out in-depth reporting on the subject and used research showing that at least half million Brazilians had voluntary abortions in 2015, while demonstrating the risks and traumas that illegal abortion has caused to women in the country. Once the public hearings at the Supreme Court were about to take place, Folha de S.Paulo, the biggest daily newspaper, published a series of reports and columns on the subject, though, in an editorial, it argued that the final decision of such a moral disagreement should be submitted to a popular consultation. O Globo, another major daily newspaper, also published a series of reports and columns mostly showing the dire situation of women who had an illegal abortion and also claiming that “the Brazilian society wants to discuss abortion.” More recently, Veja, a right-leaning and the most influential magazine in the country, clearly pointed out that the moment represents “a new opportunity to alter the legal framework in the country”, followed by a series of analyses on the subject. Their message was clear: “this is not a matter of ethics nor religion – it is of life and death.”
It is at least curious that such a debate is taking place when conservatism, and particularly religious conservatism, is gaining strength in the country. Though the Catholic Church, a historical pro-life advocate, has dwindled in number of followers in the last decades (in Brazil, Catholics were 78% of the population in 1995 and are 53% in 2017), the number of evangelicals has increased 61% in ten years and today represents 22,2% of the population. Yet the correlation between religion and pro-life defense is not immediate and the empirical data are controversial. According to research carried out by the Caholics for Choice organization, for example, the majority of religious people in the country are not against legal and safe abortion (65% of Catholics and 59% of Evangelicals), while Datafolha found 65% of Evangelicals in favor of the criminalization of abortion.
On the political spectrum, the empirical data is also very striking. In recent years, the numbers of Brazilians who support democracy has been very low. In 2016, only 32%, and in 2017, only 43% of Brazilians said they supported democracy, and incredibly only 6% said they approved of the incumbent government, the lowest score in Latin America. By the same token, the rise of far right candidates in the polls for the next presidential elections, such as Jair Bolsonaro, is also telling of the political mindset that is now spreading in the country. It has also been reported that there is a growing support for decriminalizing abortion in the country, from 23% to 36% (7% were undecided), with no variation between men and women in the results. As expected, the support for decriminalization increases among the wealthier, more educated, and younger strata of the population, the group which, astoundingly, has also supported Jair Bolsonaro the most, a politician, by the way, who has declared being against abortion. There is a spectrum of intricate and seemingly paradoxical connections among the empirical data that makes any analysis a daunting endeavor.
It is the Brazilian Supreme Court which may have a final say in this matter, and it is no wonder that the pro-life movement has explicitly adopted the strategy that this is not a matter for the Court to decide, but rather Congress. It is a circumstance that may be at odds with what has just taken place in Argentina, where the discussion took place in Congress. However, as Conrado Hübner Mendes clearly points out, whether the matter is decided by the Courts or Congress is not the real question. As he says, “if decriminalizing abortion, in any part of the world, shows any activism, this activism has been social, not judicial. Movements of women can prefer the plebiscitary avenue (Ireland, Switzerland, Portugal), legislative (Uruguay, Argentina, and many others) or judicial (USA, Germany, Canada, and Colombia) for their demands.” The choice of route is a pragmatic one, and no avenue is necessarily more legitimate than the other. It is also an urgent call as women are dying in in such staggering numbers that any theoretical argument about which institution should have the final say seems rather perverse.
Latin America has seen an increase in conservatism – and religious conservatism – in various segments of society and at the institutional level. The rise of conservative religious groups in Congress in Brazil, for instance, has been significant, and the political crisis that has afflicted the country since the last presidential elections in 2014 partly explains why the country has leaned to conservatism, and, to a certain degree, to far right conservatism. In such a scenario, it is expected that a debate over decriminalizing abortion would easily lose strength. It has, nonetheless, gone the other way around. The reasons for this paradox are many, revealing that constitutionalism is more nuanced than normally expected. Social movements and the institutional reaction to these movements can foster distinct scenarios that defy expectations. They also reveal that constitutionalism and its expectations are not always synchronic and that ups and downs, backs and forths are a common symptom of any democratic context. Yet, even in such challenging scenario, the simple fact that there seems to exist a constitutional moment being progressively shaped around this subject is itself already a good omen, even if the outcome, as happened recently in Argentina, may not be the desired one. The seeds of change, after all, are already sown, and constitutionalism, with its synchronies and dyssynchronies, will keep producing change, even when least expected.
Suggested citation: Juliano Zaiden Benvindo, Constitutional Dyssynchrony and the Debate over Abortion in Latin America, Int’l J. Const. L. Blog, Aug. 28, 2018, at: http://www.iconnectblog.com/2018/08/constitutional-dyssynchrony-and-the-debate-over-abortion-in-latin-america/
 Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 368.
 See Juliano Zaiden Benvindo, Brazilian Elections and Demonstrations of June 2013: The Rise of Conservatism?, Int’l J. Const. L. Blog, Nov. 1, 2014, available at: http://www.iconnectblog.com/2014/10/brazilian-elections-and-demonstrations-of-june-2013-the-rise-of-conservatism. For a more detailed analysis of this phenomenon, see Juliano Zaiden Benvindo, ‘The Seeds of Change: Popular Protests as Constitutional Moments’ (2015) 99 Marquette Law Review 364, 364-426.
 See Miguel Gualano Godoy, As Audiências Públicas e os Amici Curiae Influenciam as Decisões dos Ministros do Supremo Tribunal Federal? E Por Que Isso Deveria Importar?, 60 Revista da Faculdade de Direito da Universidade Federal do Paraná 137-159 (2015);
 Informe 2017, Corporación Latinobarómetro, p. 19