Editor’s note: A correction was made to this article at 1:20 pm on Thursday, June 17th to remove reference to “fetal abnormalities” as a condition under which abortion is allowed in Brazil. This condition, originally drawn from the TIME magazine article referenced below, is, according to the author, not a legal exception in Brazil.
This article is an updated and expanded version of a paper originally published by Sexuality Policy Watch. See other recent coverage of sexual and reproductive health politics in Brazil, including a recent piece in TIME magazine, and on Rewire.
Brazilian women have seen important setbacks in regard to access to abortion in recent years. A clear turning point was September 2005, when a law aimed at reforming existing punitive legislation on abortion—which currently is illegal except in cases of rape or when the mother’s life is in danger–was presented to the Congress without the required support of the executive branch. A few months earlier the government, responding to a recommendation of the First National Conference on Women’s Policies (2004), had in fact called for the formation of a tripartite commission to revise the penal code on abortion. But when, in August 2005, the Commission delivered a draft bill to legalize abortion, it got caught up in the complexities of a full-blown corruption crisis, (read the Pope’s Visit to Brazil). The present scramble around the III National Program for Human Rights Policies is, therefore, just another chapter in this ongoing saga.
One good thing is that the current controversy has allowed for abortion to be discussed widely in Brazil, and, for the first time, as a human rights issue. It is not trivial either that the macro-level political bargains triggered by recent political controversies have situated abortion as the “other” problematic issue to be negotiated among key actors (in addition to the Commission of Truth, proposed by the III National Program for Human Rights to revise state crimes committed during dictatorship).
To understand the meaning and complexity of the debate underway, it is worth reviewing at least two key elements of contemporary Brazilian history. The first is that, as in other countries in Latin America, the progressive Catholic Church of the time was a key defender of political and civil rights during dictatorship. The conservative Catholic Church that emerged after the election of John Paul II as the Pope in 1979, however, systematically contested all advances in the area of sexual and reproductive rights (particularly regarding abortion) that emerged as a result of democratization.
The resistance of the Brazilian military and of some sectors of the political elite to fully reviewing state crimes committed during the military regime is another key feature to be highlighted. In Chile, South Africa, and Peru (after the Fujimori authoritarian period), Commissions of Truth and Reconciliation were established. In Uruguay and Argentina, clear and sharp judicial review and punishment of military dictatorship crimes have also taken place and are still underway. But in Brazil, the 1979 Amnesty Law that “pardoned” those engaged in political and armed action against the regime has also forgiven state actors involved in human rights abuses and is consistently interpreted, by those resisting a full historical review, as a final and definite closure of the past.
However, in the mid-1990s, a Commission was established at the Ministry of Justice to search for missing persons and unidentified corpses and to financially compensate people who had lost family members, as well as people whose professional careers had been affected by political persecution. No full review of state crimes committed between 1964 and 1984, however, has been conducted. The objective of the Truth Commission proposed in the III National Program for Human Rights is to complete the difficult work of historical review and closure.
The III National Program for Human Rights by and large maintains and expands proposals contained in a previous program, which was adopted in 2002 (at the end of the Cardoso administration). But it also incorporates language coming from a variety of sources: existing legislation on human rights of specific groups (such as children and indigenous people); recommendations from the periodical National Conferences on Human Rights and other conferences that directly address human rights issues (such as the National Conferences on Health, on Women’s Public Policies, on Public Policies for the LGBT population and so forth); recommendations from international conventions; and other relevant international documents.
The III National Program for Human Rights recognizes that human rights are indivisible in that they encompass civil, political, economic, and social rights. The document covers a wide range of subjects such as: food security; the right to health and within it, further regulation of private health insurance; prison conditions and rights of incarcerated persons; judicial procedures regarding rural property occupation by landless peasants; genetically modified seeds; social accountability of media outlets; same-sex civil unions; and the display of religious symbols in public buildings.
In relation to abortion specifically, a proposal to revise existing laws punishing abortion — derived from the Beijing Platform — was already included in the 2002 program. The language adopted in the new text is based on the First National Plan for Women’s Policy (2004) and calls for the decriminalization of abortion to guarantee women’s autonomy over their bodies.
The document, though prepared by the National Special Secretary for Human Rights, was revised by all concerned ministries and signed by their respective ministers. However, when its content became public and was absorbed by key political actors, harsh controversies erupted within government itself on various parts of the document. Two ministers openly expressed their disagreement with the text. The minister of agriculture complained about the plan’s call to ban genetically modified seeds. Most critically, the minister of defense, who is a civilian, publicly declared that the military did not accept the language adopted in relation to the commission of truth, as it exclusively referred to crimes committed by state actors, without recognizing the human rights abuses committed by political dissidents.
Concurrently, other actors raised their voices against other critical areas. Representatives of rural landowners complained about the judicial rules concerning land occupation, private health insurance companies argued against proposals regarding ceilings in premium costs for aging people, and the media contested the call for greater social accountability. Most importantly, the Catholic Church immediately expressed its full opposition to the proposals on the legalization of both abortion and same-sex marriage, as well as the proposal about the display of religious symbols in public edifices. The main complaint of Catholic Bishops was that the Program went against “defense of the right to life.” While a large number of content areas of the third program were contested and discussed, it is significant that the debate very quickly crystallized predominantly around the truth commission and abortion.
In response to the reaction of the minister of defense, speaking on behalf of conservative voices within the military, the National Secretary of Human Rights threatened to resign, and President Lula very quickly called a closed meeting between the two competing ministers to find a solution to the crisis. After the meeting, a new presidential decree was immediately published. It changed the language originally adopted by the Program, eliminating the terms “political repression” in order to dilute the exclusive focus on state violations. This quick move has muted, at least for the time being, the conservative military reaction. The public debate on the matter has also made clear that the Truth Commission has wide public support. However, it is too soon to claim that the controversy is fully resolved, as it may resurge when the subject is debated at the level of Congress.
The dynamics of the political bargaining were, however, completely different in the case of the abortion debate. While the “truth commission problem” was being processed, the Secretary of Human Rights declared that the text on abortion should be changed because, he said, the justification used for legalizing abortion – to “guarantee women’s autonomy” – was a feminist argument and did not reflect the government’s position on the subject. Although he did not explicitly state what the official position was, previous episodes concerning abortion suggest that it would involve framing abortion as a major public health problem (and eventually maintaining the law as it stands today).
Immediately after this declaration, the Secretary met with the representative of the National Conference to discuss the matter. Almost a month elapsed before he met with the feminist organizations representing the voices of those who support abortion legalization. Unsafe abortion is indeed a major public health problem in Brazil: Roughly one in five Brazilian women have an abortion, and 200,000 women each year are hospitalized due to complications from unsafe abortion.
Right after the National Secretary on Human Rights stated that the government would seek support for the Program from the international human rights system. In fact, the UN High Commissioner Navi Pillai, who recently visited Brazil, has already published an article in the Brazilian Press (Folha de São Paulo) openly supporting the creation of the Truth commission. But the next governmental step would be to ask UNESCO to consider the dictatorship archives and a patrimony of humanity and to have the Office of the High Commissioner assess the consistency of the III Program with existing international human rights law. Resorting to international human rights instruments to defend the III Program was certainly a quite remarkable step. But it should be also noted that while existing international instruments provide strong supporting arguments for those topics relating to political persecution and measures of truth investigation, the identification of international human rights language on sexuality and abortion is more complex. It will require the content of international conference documents and of recommendations issued by human rights surveillance organizations to be made visible and to be valued.
Meanwhile, feminists and other sectors have mobilized countrywide to support the Program, particularly around International Women’s Day. But on March 16th, the press announced that the National Secretary on Human Rights had declared that three items included on the plan would be eliminated or modified: the recommendation on religious symbols in public buildings, the rules concerning land occupation, and, evidently, the language on legalization of abortion. Not surprisingly, the next day, the police closed an abortion clinic located in a poor area of downtown, and health professionals and clients (some of them bleeding) were criminally indicted.
Petitions and protests against the announced decision quickly circulated. Feminist organizations gathered around the The Brazilian Initiative for the Right to Legal and Safe Abortion (Jornadas por um Aborto Legal e Seguro) and signed a public letter making it clear that they would not accept any change in the language adopted by the III Program. On March 19th, in a public event organized by the Public Defenders’ Office in Rio to discuss the III Program, the Secretary said that, in relation to the abortion debate, he had consulted not only Bishops but also Catholics for Choice. Most importantly, he informed the audience that the call for decriminalizing abortion would not be eliminated but that language would be modified to be consistent with what is written in the 1995 Fourth World Conference on Women Beijing Platform of Action (paragraph 106k, which combines paragraph 8.25 of ICPD with the recommendation that countries must revise punitive legislation). But in light of the constant back-and-forth of the controversy, this may not be the end of the debate.
On April 27th the National Secretary of Human Rights declared that the language on abortion would be amended as to address it as a major public health problem and to recommend de-criminalization along the line of Beijing paragraph 106k. Then on the 29th the Supreme Court finally decided the case presented by the National Bar Association (OAB Brasil) claiming that torture and killing, being crimes against humanity, should be excluded from the rule of general pardon defined by the 1979 Amnesty Law. Seven judges voted against the claim preserving the therefore the “closure” nature of the Amnesty Law, which was adopted before the 1988 Constitution. In the words of Marcos Nobre, a sharp political analyst and op-ed writer:
[The Supreme Court decision] considered a law approved under the military dictatorship a foundational source of the present democratic order. This attitude is more than paradoxical. It is and authentic institutional suicide.
The entire episode is revealing of the complex contradictions of the Lula administration, which are not always easily understood by those who do not experience the daily dynamics of domestic politics. These contradictions involve both internal, high level tensions and big gaps between the positions expressed by civil society voices in participatory policy mechanisms – such as international conferences – and official positions that are usually framed in terms of economic interests and electoral bargains. Trends and skirmishes observed between January and April revealed, once again, how legalization of abortion was deeply caught within the complex webs of a major political trade-off in which the real prize at stake was the Commission of Truth. It is not trivial either that the Catholic Church, which was a major advocate for political rights during dictatorship, is once again fully opposing abortion, same sex marriage and secular rules about the display of religious symbols. And most principally the Supreme Court decision is not a good sign in terms of the future of Brazilian democracy in its broader sense.
Yet even despite the positive signs seen in late April, in fact, further regression in relation to abortion was yet to come. On May 13th, President Lula finally signed a new decree altering the text of III National Program for Human Rights (PNDH3), in relation to decriminalization of abortion, the prohibition of religious symbols display in public buildings, social accountability of media, procedures regarding the mediation of agrarian conflicts. Particularly in respect to abortion the new text simply states, “abortion is considered as a public health problem in relation to which access to health services is to be ensured.”
Then on May 19th the Commission on Family and Social Security (CSSF) of the House of Representatives approved a legal provision entitled the “Statute of the Unborn.” The definition of the “unborn” in the approved text includes both in uterus and in vitro embryos. If approved, the provision may imply the a judicial interpretation that human life begins at conception and this will lead to the elimination of article 128 of the Penal Code that defines the two cases in which abortion is permitted: rape and women’s life risk. An agreement reached among the members of the Commission at the end of the debates also led to adoption of complementary and convoluted additional text, in which it is stated that, if the provision is approved, Article 128 will not be changed. This last minute maneuver aims at appeasing the electorate, as all opinion polls performed in Brazil in the last decade that indicate that society does not want to see any further erosion in the right to abortion.
The approval of the Statute follows a well-known pattern, as since 2005 whenever the executive branch back-pedals, anti-abortion forces make a jump forward. Despite the last moment maneuver to preserve article 128, the preliminary provision also makes clear that the main goal of anti-choice forces is to further restrict the law. This is not a surprise either. In 2007 when the Pope visited Brazil a Brazilian priest who is a member of Human Rights International announced publicly that their goal was to make Brazil “a big Nicaragua.”
The text of the provision nears absurdity. For instance: what can be the possible interpretation of Art. 12 of that states that “It is forbidden for the State and private individuals to cause any injury to the unborn by reason of acts performed by any of the parents.” Or what to say about an article in the provision, which establishes public-funded “incentives” for women who become pregnant as a result of rape not to terminate the pregnancy. The incentives include antenatal assistance and psychological support; state facilitation for the child to be placed for adoption, in case the woman agrees; and provisions to compel the ‘father’ of the unborn to pay “alimony”; in case the ‘father’ is not identified, “alimony” will be provided by the state.
Feminists have strongly reacted to these proposals, because if adopted, they will mean state legitimization of sexual violence, complicity with the crime of rape and total disregard the physical and psychological effects of rape. Some voices have also recalled that inducing women to take to term a pregnancy resulting from rape can be interpreted as forced pregnancy and be equated with torture.
The Finances and Tax Commission will now analyze the budgetary and financial implications of the provision. Subsequently, the Commission on Constitution, Justice and Citizenship will assess its constitutionality and make revisions before sending it to be voted by the House. It is vital that the international sexual and reproductive health and rights community pays closely attention to the rocky road that lies ahead if for no other reason than because Brazil today is an emerging power.