By MARIA APARECIDA AZEVEDO ABREU*
What the world already knows and has done in relation to abortion, but the Brazilian legislative branch insists on not accepting
1.
Last week, the main focus of the Brazilian political debate was PL 1904/2024, which quickly gained the name “PL of rapists” and mobilized the “Child is not a mother” campaign. Given the forceful reaction of Brazilian society, whether on the streets or on social media and on the Chamber of Deputies' own website, the agreement between the evangelical bench and the president of the Chamber, Arthur Lira, for the emergency regime to be approved in the course of the PL, it lost its strength.
However, the project initiative cannot be forgotten. Recent Brazilian history has shown that, in parliamentary politics, legislative cries of inhumanity are not just the result of outbursts, but a strategic practice to demonstrate power. Often, sexuality, or women's reproductive rights, and in particular the right to safe abortion, is the main topic used to spread horror in the political debate. The question is, why, this time, was this the PL presented?
This article adds to the efforts of many researchers (and researchers who, I am sure, will not mind the feminine plural) in establishing humane and reasonable guidelines for the debate on the topic of PL, which cannot be left aside.
Currently, the Brazilian Penal Code, the part of which defines criminal types dates back to 1940, provides for possibilities in which abortion constitutes a legal practice. Such possibilities are situations in which the mother's health is at risk or in which the pregnancy was the result of rape, at any time during the pregnancy.
PL 1904 proposes that, after 22 weeks, both the pregnant woman and the health professional who assists the practice are criminalized for the practice of abortion, even if the pregnancy is the result of rape.
The project was authored by Sóstenes Cavalcante (PL/RJ) and had 31 signatures, in this order:
1 Dep. Sóstenes Cavalcante (PL/RJ)
2 Rep. Evair Vieira de Melo (PP/ES)
3 Representative Paulo Bilynskyj (PL/SP)
4 Dep. Gilvan da Federal (PL/ES)
5 Rep. Filipe Martins (PL/TO)
6 Representative Dr. Luiz Ovando (PP/MS)
7 Rep. Bibo Nunes (PL/RS)
8 Representative Mario Frias (PL/SP)
9 Deputation Delegate Palumbo (MDB/SP)
10 Representative Ely Santos (REPUBLIC/SP)
11 Representative Simone Marquetto (MDB/SP)
12 Representative Cristiane Lopes (UNIÃO/RO)
13 Representative Renilce Nicodemos (MDB/PA)
14 Rep. Abilio Brunini (PL/MT)
15 Representative Franciane Bayer (REPUBLIC/RS)
16 Representative Carla Zambelli (PL/SP)
17 Deputy Dr. Frederico (PRD/MG)
18 Representative Greyce Elias (AVANTE/MG)
19 Deputation Delegate Ramagem (PL/RJ)
20 Representative Bia Kicis (PL/DF)
21 Representative Dayany Bittencourt (UNIÃO/CE)
22 Dep. Lêda Borges (PSDB/GO) CHAMBER OF DEPUTIES
23 Representative Junio Amaral (PL/MG)
24 Dep. Coronel Fernanda (PL/MT)
25 Representative Pastor Eurico (PL/PE)
26 Dep. Captain Alden (PL/BA)
27 Dep. Cezinha de Madureira (PSD/SP)
28 Representative Eduardo Bolsonaro (PL/SP)
29 Dep. Pezenti (MDB/SC)
30 Representative Julia Zanatta (PL/SC)
31 Representative Nikolas Ferreira (PL/MG)
32 Representative Eli Borges (PL/TO)[I]
2.
The first justification of the proposal invokes the intention of giving the text of the 1940 Penal Code a text that was more appropriate to the will of the legislator at the time. This invocation, in addition to being extemporaneous, has an attempt to update it by referring to a program by presenter Ratinho from 1998, based on news of events that occurred in compliance with a medical protocol valid at that time.
After this attempt at updating, other cases are narrated, in a fragmented way, and a legislative attempt to decriminalize abortion is mentioned – in the wording of the bill, “legalize abortion”.
Then, a document from the Public Ministry of Santa Catarina, from 2023, is mentioned, in which there is the following recommendation: “When there is fetal viability, it is recommended that the fetal asystole induction procedure be carried out prior to induction of labor, It is up to the services to organize themselves so that this procedure is guaranteed”.
Based on this document, the PL proponent's fear is that: “Public Ministries, throughout Brazil, will probably come together to force hospitals that perform abortion procedures to follow these recommendations. Any pregnant woman may have an abortion, at any gestational age, simply stating that she has been a victim of violence, without the need to present evidence or documents.
What could happen, after this, in this sequence? The next step is already on the horizon, through ADPF 442, which is being processed at the Federal Supreme Court, for which the then Minister Rapporteur Rosa Weber has already presented her vote, at the end of 2023”.
It is clear, then, in which debate the Bill is inserted: in that of the Action for Non-compliance with Fundamental Precept, ADPF 442, proposed by the Socialism and Freedom Party (PSOL), which had an excellent vote from the former minister of the STF, Rosa Weber, who put the trial of this ADPF on the agenda before her retirement.[ii]
In short, Rosa Weber's argument was centered on the dignity of life and the constitutional character of the principle of human dignity and its connection to the protection of life, based both on empirical data and on contemporary constitutional authors.
In the Justification of PL 1904, we seek to compare this principle with respect for the absolute right to life. To this end, the American Declaration of Independence and the 1948 Declaration of Human Rights are invoked, claiming that this was agreed to prevent Nazi governments from relativizing the right to life or restricting it in any way.
In short, the proposer of the Bill and his co-signatories argue, with somewhat obtuse arguments, that the absolute right to life has greater weight than the right to a dignified life, which also concerns the prohibition of any procedure that means torture .
The disloyalty of the arguments in this Justification must be exhaustively denounced, as it highlights the unconstitutionality of the Bill, which is being requested precisely by parliamentarians and has already been pointed out by the Brazilian Bar Association (OAB) in an opinion approved by its Federal Council .
Current Brazilian society has as its main legal-normative reference the 1988 Constitution and its various amendments, as well as its interpretation given by the Federal Supreme Court.
In relation to abortion, the movement that Brazilian society has been demanding and has been recognized by the STF, with ministers who are appointed by majority-elected Presidents of the Republic, is to expand women's autonomy over their bodies, and not to restrict it. . Any attempt to the contrary is punitive in nature and hateful towards women.
This nature was revealed in the reactions of the author of the Bill to the criticisms aimed at him: (i) proposing a bill to increase the sentence for rapists; (ii) emphasize that girls will not be arrested, but sentenced to socio-educational measures, as if this sentence were reasonable for someone who was a victim of violence. This type of reaction comes from someone who intends to propose norms in an abstract world, which do not hold up when confronted with contemporary reality, especially the Brazilian one.
Contrary to what is pointed out in the Justification, the 1776 American declaration of independence is not the only basis of modern constitutionalism. The American nation that was founded in 1787 admitted, among other practices, slavery. In the XNUMXth century, the right to vote was universal nowhere in the world.
Humanity has come a long way since then, towards democratic inclusion and non-tolerance of violence, the worst of which is torture. Torture is a manifestation of cruelty, a human attribute that worsens any social relationship, any crime.
Not by chance, the World Health Organization equates mandatory pregnancy in cases of rape with torture and the Brazilian Bar Association, in an opinion approved by the entity's Federal Council and published on 17/06/24,[iii] considers the measures proposed by PL 1904 in the same way.
Unlike what is pointed out in the Justification, Brazilian constitutionalism is also, or even more so, influenced by French constitutionalism which, unlike the American one, recently included women's right to voluntary termination of pregnancy. This constitutional change was celebrated on March 8, International Women's Day.
Still in the French debate, in 1974, Simone Veil, a Jewish woman, survivor of the Holocaust, then minister of health, spoke to the national assembly: “it is also with the greatest of convictions that I will defend a project long reflected and deliberated by the entire of the government, a project that, according to the President of the Republic's own terms, aims to 'put an end to a situation of disorder and injustice and bring a proportionate and humane solution to one of the most difficult problems of our time'. (…) I affirm with all my conviction: abortion must continue to be the exception, the last resort for unresolvable situations. But how can we tolerate it without it losing its exceptional character, without society appearing to encourage it? I would like, first of all, to share with you a woman's conviction – I apologize for doing so in front of this Assembly almost exclusively made up of men: no woman happily resorts to abortion. Just listen to women. Abortion is always a drama and will always remain a drama.”[iv]
And, after pointing out the various evidences of the French reality at the time, Veil concluded his speech, which anticipated the approval of the decriminalization of abortion, by the French national assembly: “The new generations surprise us, sometimes, because they are so different from us; we ourselves educate them differently from the way we were educated. But this youth is courageous, as capable as others of enthusiasm and sacrifice. Let us know how to trust her to preserve its supreme value in life.”.
Because what PL 1904 intends is, instead of trusting, to rob girls of their youth and childhood, making their traumas and the violence of which they are victims even more unbearable. This lack of trust, however, does not seem to be shared by a large part of Brazilian society, at least that which has been expressed in public debate forums on the topic.
At 19:22 pm on 17/06/2024, the poll opened on the Chamber of Deputies website regarding PL 1904 presented the following results:
In the survey, five alternative expressions about the PL were made available: I completely agree, I agree for the most part, I am undecided, I disagree for the most part, I totally disagree. The responses were concentrated at the extremes: I totally disagree, with 12% of the statements (119.036); and I completely agree, with 88% of the comments (953.813), totaling more than a million demonstrations.
The positive point of the PL indicated on the website that had the most support, with 13.435 likes, was the following: “Prevents the murder of babies/fetuses because of a crime not committed by them”.
In relation to this point, some considerations have to be made. No law of any kind prevents anyone from acting. What can be done, through law, is to encourage, guide and, at the limit, penalize conduct. The penalty has a moral function, in the sense of classifying a conduct as unacceptable, but it can also discourage behavior.
In the comment above, a concern is indicated: that someone (a baby/fetus) will be murdered due to a crime not committed by them. Now, in order for this someone, who is still, bodily, a becoming, to survive, someone else has to sacrifice themselves in an inhumane way. Based on what the law suggests: is it reasonable to demand that someone who has been raped is still forced to bear the consequences of the violence of which they were a victim until the end of their life? Is it reasonable to force a rape victim to carry an embryo/fetus resulting from this violence for nine months?
Another comment, this one regarding the negative point of the PL, is the following: “This misogynistic PL tries to criminalize women who resort to terminating their pregnancy as a last resort. Abortion is a public health issue, not a religious one. The most penalized are poor women, who do not have the resources to pay for safe clinics. Many women who resort to abortion are minors, victims of violence and rape. The PL is violence against women. It is unbelievable that deputies spend public resources to attack women’s rights”.
This comment, with 191.242 likes, summarizes the various arguments presented by feminists and researchers on the topic. It indicates that a substantial part of society is informed and realizes the disaster that a proposition like PL 1904 represents. To the arguments presented in this comment, it can be added that, if the predominant race of rape victims is considered, the PL is still racist, as the majority of victims are black. This point was also recognized by the OAB, in the opinion approved by its Federal Council.
The debate on this PL could be the opportunity that Brazil so desperately needs to have a mature discussion about abortion and the dignity of life. This debate is extremely important in this year's municipal elections.
As an example of this importance, in São José dos Campos, a municipality in the interior of the state of São Paulo, with a population of 697.054 people, also last week, there was news of the collection in schools of the book "Dreaming Girls, Women Scientists”, written by Flávia Martins de Carvalho. During a session at the City Council, on June 11, councilor Thomaz Henrique (from PL, the same party as the proponent of PL 1904 and several co-signatories) demanded the removal of the book from schools by stating that one of the book's references is Débora Diniz, abortion advocate.
Débora Diniz, one of the most relevant researchers on the topic of abortion in the country and a tireless activist in defending women's right to adequate assistance in all procedures involving abortion, was the main target of this intolerable political persecution.
A post by Débora Diniz explains the reasonableness of not criminalizing the search for voluntary termination of pregnancy after 22 weeks of pregnancy: “I hear this question from all sides. Why guarantee abortion due to rape or risk to life at different times of pregnancy? A decade-long literature review, published in British Medical Journal, showed that 90% of abortions are carried out before the twelve week menstrual delay limit. I repeat: 9 out of 10 abortions are performed in the first few weeks. The mapping was carried out in countries where abortion is decriminalized or legalized and there is access to medical abortion. The study describes them as “rich countries”.
“Nine out of ten women seek an abortion soon after finding out they are pregnant. This is also the result we found in the first edition of the qualitative National Abortion Survey in Brazil: women performed abortions, even in hiding, until the fourteenth week. So why are we talking about more advanced periods? Because these are the most dramatic situations, such as girls raped in the house and kept under the control of the rapist; cases of domestic violence with marital rape; risk to life resulting from pregnancy”.
“Furthermore, girls and women face unfair barriers to accessing services. Doctors doubt their word, intimidate them, there are lack of services and victims are forced to travel between states. There is a lack of access to information, in addition to the trauma of rape. Even though an abortion is rarer in the context of the magnitude of the abortion, late-term abortion is what constitutes extreme health care. He is the one who will take care of a young girl who is a victim of violence; which will save a woman so that she can stay alive, either to not die or to take care of other children. Use science for this public debate. We cannot fall into the animosity of moral panic: it’s about girls’ lives.”. (Reference to article: Review: Trends in the method and gestational age of abortion in high-income countries doi 10.1136/bmjsrh-2018-200149 Journal: BMJ Sexual & Reproductive Health).[v]
The attack on women's dignity occurs on a national scale through Bills that violate women's rights that have already been achieved, but also in a pulverized and widespread way in municipal and state legislatures. In pursuit of a moral war whose losers are always women, parliamentarians at all levels are betting on the country's regression under the guise of political parties.
Because of this scenario, we cannot leave aside the cruelty and disloyalty that this Bill and the nature of its proponents invoke. Highlighting the importance of the dignity of life, the removal of cruel punitiveness and reasonableness in proposing legislation, in a country that so much needs social justice, is an urgent measure. It is urgent to make all unworthy forms of existence and doing politics unfeasible.
Our legislative power, in all its spheres, needs to be refreshed and focus on the future. Our society demands advances and expanded and effective rights, not more guilt and more punishment. Professional politicians, instead of the position of opportunists, executioners and blackmailers, need the position of responsibility. These are some of the needs to be considered in the upcoming municipal elections.
*Maria Aparecida Azevedo Abreu is a professor at the Institute of Urban and Regional Research and Planning at the Federal University of Rio de Janeiro (UFRJ).
Notes
[I] Text of PL 1904/2024, with Justification and signatures available at: https://www.camara.leg.br/proposicoesWeb/prop_mostrarintegra?codteor=2425262&filename=PL%201904/2024
[ii] Rosa Weber's vote, in full, is available at: https://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/Voto.ADPF442.Versa771oFinal.pdf
[iii] To access the full opinion: https://s.oab.org.br/arquivos/2024/06/f63db594-9494-4a55-85cd-ab354c7acf0a.pdf
[iv] VEIL, Simone. A law for history: the legalization of abortion in France. Rio de Janeiro: Bazar do Tempo, 2018.
[v] Link to the post, made publicly: https://www.instagram.com/p/C8LxA9_IBPK/
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