Senior advocate Anand Grover speaks on decriminalisation of abortion during two-day public hearing in the Supreme Court of Brazil

[dropcap]T[/dropcap]he Brazilian Supreme Court is holding a two-day public hearing about the decriminalisation of abortion, and Senior Advocate Anand Grover was selected through an open application to speak on the subject from India. At the hearing, which took place on August 3 and is taking place today, August 6, about 50 speakers can be heard, including health, law and social science experts, as well as feminist and international human rights organizations, and religious representatives.

With the hearing being broadcast on Brazilian TV Justiça and Radio Justica (@RadioJustica), it’s a prestigious forum to debate crucial legal, health and feminist points on the contentious abortion debate.

According to the organisers, “The public hearings aim to broaden the dialogue on issues that will be judged by the Supreme Court, through the participation of experts in technical, scientific, administrative, political, economic and legal aspects of the subject in question. Arguments presented by the speakers should contribute to further inform the decision-making of the Justices.”

Origin of the debate

The public hearing on abortion was convened in the context of the Constitutional case ADPF 442, for which Justice Rosa Weber is the rapporteur. The case, filed in March 2017 by the Partido Socialismo e Liberdade (Socialism and Freedom Party, PSOL) in partnership with Anis – Institute of Bioethics, called for the decriminalisation of abortion on request in the first 12 weeks of pregnancy, on the woman’s decision.

The main argument of ADPF 442 is that the criminalisation of abortion violates many of women’s constitutional rights, including the right to dignity, citizenship, the right not to be discriminated against, the right to life, equality, freedom, the right to freedom from torture, the right to health and to family planning

Currently, according to the 1940 Brazilian Penal Code, a woman who has an abortion can be sentenced to up to three years in prison, and any person who helps her obtain the procedure (health professionals, friends, relatives) can be imprisoned for up to four years. The only exceptions when an abortion is not considered a crime are in cases of rape, risk to the woman’s life or if there is a foetus with anencephaly, that is, without a brain.

The main argument of ADPF 442 is that the criminalisation of abortion violates many of women’s constitutional rights, including the right to dignity, citizenship, the right not to be discriminated against, the right to life, equality, freedom, the right to freedom from torture, the right to health and to family planning.

The actual hearing of the Court on ADPF 442 is not yet scheduled.

Public health

According to the Pesquisa Nacional do Aborto (National Abortion Survey) – conducted by Anis – Institute of Bioethics in 2010 and 2016 – one in five Brazilian women has already had at least one abortion by the age of 40. In 2015 alone, 503,000 Brazilian women had an abortion. This means a Brazilian woman decides to terminate a pregnancy every minute. Those who have abortions in Brazil are ordinary women: the majority are young, have children and follow one of the major religions in the country; they are Catholic, Evangelical or Spiritist.

Done under proper conditions, abortion is safer than giving birth. However, the World Health Organization (WHO) estimates that 7 million women are hospitalized each year in developing countries as a result of unsafe abortions, and between 4% and 13% of maternal deaths in the world stem from abortions performed under precarious conditions, concentrated in poor countries. These are preventable deaths, such as that of Ingriane Barbosa, who died of a generalized infection on May 16, 2018, in Petrópolis, Rio de Janeiro, after attempting an abortion at home using a castor bean stalk. Ingriane was the mother of three children.

Dignity and citizenship 

The proposers of ADPF 442 argue that the criminalisation of abortions violates women’s dignity and citizenship by preventing them from having the possibility to decide whether or not they want to be mothers. Criminalization also exacerbates inequality among women: those with higher incomes are able to seek procedures in safe and expensive clinics or travel to countries where abortion is legalized when they cannot carry a pregnancy forward. To make the same decision, the most vulnerable women – poor, young, with little education, black and indigenous – are at health risk and risk of being arrested or even killed.

The year 2018 is already historic in women’s fight for respect for their reproductive decisions. In May, Ireland decided in a referendum to make a constitutional change that would allow them to reform their law on abortion, which has been banned in the country since 1983. In June, the Argentinian House of Deputies approved a bill to legalize abortion on request up to 14 weeks of pregnancy and allow a range of legal grounds after 14 weeks. The approval was marked by the cheering of tens of thousands of Argentinians in the streets, who support the law reform by wearing and waving green handkerchiefs. The bill will be debated in the Senate on August 8, soon after the end of the Brazilian Supreme Court public hearing.

Facts about abortion

  • According to the Pesquisa Nacional do Aborto (National Abortion Survey), of the total number of women who have had abortions in Brazil, it is estimated that 3 million have children. If the criminal law was strictly enforced, today there would be 3 million families whose mothers would have been or would still be in prison for the crime of abortion.
  • The prohibition of abortion does not prevent its practice. In Brazil, the 500,000 women who have abortions every year prove this. Criminal law does not reduce the number of abortions. What reduces abortions are the same measures that reduce unplanned pregnancies: comprehensive sex education, access to a range of modern contraceptive methods, good quality sexual and reproductive health services, and prevention of sexual violence.
  • In countries where abortion is legalized, the number of abortions tends to fall. Romania, Portugal and France are examples of this. This happens because when abortion is treated as a reproductive health need, health services take better care of women without the threat of arrest or stigma. Then, it is possible to understand why the unplanned pregnancy happened and therefore prevent it from happening again.
  • The termination of pregnancy in the first 12 weeks is a very safe procedure, with a very low risk of complications that would require women to seek care in hospitals. In fact, the World Health Organization (WHO) recommends that, up to nine weeks’ pregnancy, medical abortion can take place in the woman’s home, with adequate medical advice and access to the medications, and would guarantee greater privacy and well-being for the woman. Reliable international studies also show that there is no cause-and-effect relationship between safe abortions and an increased risk of infertility, ectopic pregnancy, miscarriage, foetal malformation, cancer, or mental distress.


Read Anand Grover’s Submissions on ADPF 442 in the Brazilian Supreme Court on decriminalising abortion.