1 in 5 Brazilians will have an abortion until the end of their lives. The data are from the National Abortion Survey and indicate detachment between the law and the reality of women in the country. To discuss the topic, the Report was to understand why the abortion debate is still so complicated and what holds down decriminalization.
Ana * was 15 when she decided to have an abortion. Dating for the first time in her life with a 19-year-old man, she relied on the method known as tabelinha - in which women regulate relationships based on the menstrual cycle - to fuck without condoms. It went wrong and she got pregnant.
The initial reaction was shock, but the decision not to have a child was immediate. Almost instantly, she says she has gone on to research abortion methods. By Orkut, discovered misoprostol, a drug originally indicated for the treatment of ulcers and commercialization banned in Brazil since 1998, the year in which the Ministry of Health found its abortive potential and made the substance restricted to use in hospital units.
Ana's boyfriend did not know about the ban and left asking about the drug in pharmacies. In the sixth of them, he heard from an employee that the marketing was a crime, but that he could get the tablets for 300 reais, through a scheme with people who worked in a hospital in Santos. To get the money, she sold a gold chain. The boyfriend completed the money.
"This medicine is very strong. On the day, as soon as I took it I ran, hurrying up and I was desperate, thinking that I had also vomited the pill. After six hours, it began [to bleed]. And it's a pain I do not know how to explain, it's desperate. The sensation is a contraction, your uterus is expelling what is there, it is the pain of childbirth, a terrible business, "he describes.
Faced with the abnormal amount of blood and severe pain, Ana says that she cries all the time and is terrified of needing to go to the hospital if she has a hemorrhage. Her greatest fear is that her boyfriend or her own mother could be arrested, since she was a minor. The entire process lasted for 12 hours, but the bleeding remained for several days until it ceased.
Ana's story is similar to that of thousands of Brazilians who each year undergo illegal and unsafe abortion, either through medication or through clandestine clinics. Held every two years by Ibope Intelligence and commissioned by ANIS - Bioethics Institute, the National Abortion Survey (PNA) 2016 showed that 1 in 5 Brazilian women will perform at least one abortion until the end of the reproductive cycle. In 2015 alone, the survey estimates that approximately 503,000 abortions were performed nationwide.
The PNA is the basis of the Arrangement of Non-compliance with Basic Precept (ADPF) 442, a piece filed in March 2017 in the Federal Supreme Court by ANIS itself in partnership with PSOL. The purpose is to declare non-acceptance of Articles 124 and 126 of the Penal Code: the first deals with punishment for the woman who practices abortion. The second is relative to who does the operation in the pregnant woman.
One of the authors of the request, the professor of Criminal Law and Criminology of UFRJ and former candidate for state deputy for PSOL, Luciana Boiteux says that the initiative started with a partnership with the Bioethics Institute in 2016. When realizing that the movement was widely supported by women affiliated to the party, the PSOL decided to take the attempt to the STF, since only a small number of political entities are authorized to bring an ADPF to the Supreme Court.
"In Congress, the decriminalization of abortion has been on the agenda for a long time. We have tried through a bill introduced by Mr Jean Willys and there has been a complete ban on even the debate. abortion issue was not resolved by legislative bodies, but rather by the judiciary, as in the case of the United States and Germany ... We decided that here in Brazil, we should be guided by the Constitution of 88, which was not adopted in its completeness in this We are still talking about the Penal Code of 1940, which we consider to be incompatible with the rights of women guaranteed by constitutional means, "he argues.
Under Rosa Weber's report, the play began to make a noise in August, when the Court summoned experts to discuss the issue and put forward arguments that could support the judges' decision. Groups favoring the decriminalization of abortion in the country have set up a network of support and articulation to support the arguments before Weber.
Caution has a reason, since this is not the first time that comes very close to decriminalize (or legalize) abortion in Brazil. In 2002, the Special Secretariat for Public Policies for Women of the Presidency of the Republic promoted throughout Brazil the so-called "Brazilian Days for the Right to Legal and Safe Abortion". The initiative generated municipal, state and national conferences with the objective of finally elaborating a review of the punitive legislation around the theme. With the support of more than 120,000 women, the mobilization gave rise in 2004 to a committee within the House that could have regulated abortion in the country.
The "Tripartite Commission for the Review of Punitive Legislation Addressing Voluntary Interruption of Pregnancy" was formed by representatives of Congress, the Federal Government and Civil Society. But the shooting backfired: the imminent approval of legal abortion in the country made conservative MPs articulate in a pro-life parliamentary front, which eventually defused the debate and rejected the proposal before it was voted on in plenary. Part of the Commission at the time, the president of the Brazilian Association of Anthropology (ABBA), Lia Zanotta Machado recalls the case with sadness. "It was almost a tragedy, we lost a great possibility and the movement has grown this conservative pro-life wave that is gaining space in society every day," he laments.
"Resistance, however, was not lost. The Constitution speaks in women's right to full mental and physical health, to dignity. If we expect public opinion to be favorable, many women will die, many will suffer morbidity from sequelae and psychic suffering, "argues the researcher, who was at the hearing convened by the STF in August.
If it were not for the Tripartite Commission's movement, it is probable that the movement presided over by the professor of the Institute of Biology of the University of Brasília, Lenise Garcia would not exist. Since 2008, she has participated and leads the "Brazil without Abortion". The militancy began on its own, when presenting technical advice to support the manifestation of the Attorney General's Office in the trial on embryonic stem cell research (the proposal was approved in the STF).
At the time, Lenise met professionals from other areas with similar principles and came to head the movement. Lenise was active in the discussion also against the release of abortion in cases of anencephaly. Now, it is struggling to ensure that ADPF 442 does not walk the Supreme Court.
"The STF is not the scope for this debate, but the Congress. And no one should say that Congress is omitting it in this regard. We had an attempt at approval in the House and there was a defeat of the project from 33 to 0. Your team plays with mine, lose and you will say that there was no game? In addition, there are currently projects in the pipeline for the legalization of abortion, as well as for restricting more, so it does not make sense to say that in Congress this is not being debated, "he criticizes.
Debate may relax legislation, but may also lead to tougher rules
Lenise - who maintains contact with several MPs opposed to the approval of abortion - said he believed that, if it happened, the provision of ADPF 442 would immediately be accompanied by a resurgence in legislation passed in Congress. She cites as example PEC 181, which initially foresees an increase in maternity leave for mothers of preterm infants, but who ended up receiving an increase by Congressman Jorge Tadeu Mudalen (DEM-SP) prohibiting abortion in any circumstance in Brazil, including in cases of rape and risk of death of pregnant women.
The PEC has not yet been considered in plenary, but in Brasilia it was understood as a legislative response to the Habeas Corpus 124,306, granted in 2016 by the 1st Panel of the STF to two persons accused of gang formation for administering an abortion clinic. On the occasion, the minister Luís Roberto Barroso wrote in the vote that "criminalization of abortion was incompatible with the sexual and reproductive rights of women," a phrase seen by pro-life groups as a sign of possible liberation in the Supreme.
Lenise's opinion is corroborated by USP's law professor and now elected MP, Janaína Paschoal. At the hearing, Janaina spoke at length about maintaining the current legislation, which she considers moderate. The teacher - who was known throughout Brazil for defending the request that led to the impeachment of President Dilma Rousseff - says that the mobilization can bring adverse effects, which in this case would come in the form of the destruction of the exceptions that the law allows abortion.
"If the Supreme Court declares that Articles 124 and 126 have not been received, I believe Congress will criminalize again, perhaps in another language. And it tends to be worse because our law is good. These people are struggling for it, thinking that they are going to get something good, the chance of having a resurgence in the legislation is real, "he warned.
Janaína criticizes the text of the petition and the strategy of PSOL and the Bioethics Institute in the text by mentioning ADPF 54 (which allowed abortion of brainless or anencephalic fetuses) as the legal basis for the current request. Paschoal says that Supreme signs of past cases can not be seen as "growing matter."
"It's the opposite. The Supreme Court only considered the case of anencephalies allowing abortion because in the Criminal Law, there is the principle of the unequal conduct of diverse, ie, they recognized that although intrauterine life is a protected (protected) value, in the fetus with anencephaly life is unfeasible They understood that the state had no right to force the entire family to spend nine months preparing for the baby's funeral. There is a whole theory of constitutional principles behind this decision of the Supreme, it is not an open door to anything, "he argues.
Already for Luciana Boiteux, Congress can not simply go over a decision of the Federal Supreme Court approving a new law hardening the penalties for women. "Within a democracy, we expect parliamentarians to respect a decision of the Supreme Court." Our limit is constitutionality, and any counter-movement would be understood as a symptom of authoritarianism, which can be held accountable of public authority and of denunciation to international superior bodies, "he argues.
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