Judge Rosa Weber, president of the Supreme Court of Brazil, on Thursday during a trial at the headquarters of the court, in Brasilia.Andre Borges (EFE)
The president of the Supreme Court of Brazil is rushing her last days in office and wants to leave her mark on an issue as capital as it is controversial. Magistrate Rosa Weber has voted this Friday in favor of decriminalizing abortion until week 12 by reopening deliberations on a case with potential for Brazil to stop being the only one of the large Latin American countries where the voluntary interruption of pregnancy is still restricted to three cases. That decision by Weber in a case for which he is rapporteur is part of his farewell. Next week he is forced to retire on his 75th birthday. Showing how thorny the issue still is, immediately after the judge's vote the hearing was suspended and the debate will be resumed later on an undetermined date.
The magistrate maintains in her decision that, "when observing the world from the lens of women, motherhood should not derive from social coercion (...), but from the free exercise of their self-determination to build their life project." Weber wanted to make clear his position in a case that the Supreme Court has on the table for six years. And at a time when it is likely that Weber will be replaced by a man and there will be only one woman among the eleven togados.
For seven decades, Brazilian women have been able to interrupt their pregnancy in case of rape or risk to the health of the pregnant woman. And since 2012, and thanks to a decision of the courts, in case the fetus lacks brains.
The anthropologist Débora Diniz, one of the main references on abortion in this country, said early Friday that "Brazil is closer than ever to decriminalizing it." The latest national survey indicates that one in seven Brazilians has terminated at least one pregnancy before turning 40. Around half a million abortions are performed each year. Most of them are clandestine. Black Brazilian women are 46% more likely to undergo an unsafe process. The legal ones are very few, around 2,000 per year.
Diniz maintains that Judge Weber's vote "is very solid" and makes it clear that the Penal Code contradicts the Constitution in this area. The expert emphasizes that the ruling responds to the main controversies on the issue but emphasizes that "we have to wait for the trial." The question is whether it will be resumed in a matter of weeks, months or years.
Although Brazil was a pioneer in the Americas when it approved the right to abortion in 1940, in recent years it has lagged far behind in the battle for reproductive rights due to the ultraconservative wave that brought retired military officer Jair Bolsonaro to power. While Bolsonaro isolated Brazil from the world, sealed a political alliance with evangelical churches and curtailed rights, decriminalization was advancing rapidly in Argentina, Colombia and Mexico thanks to a powerful feminist mobilization.
The Argentine Senate legalized it at the end of 2020 until week 14. The Colombian Supreme Court gave the green light, in 2022, until week 24. And, unanimously, the highest Mexican court has just legalized it this month throughout the territory.
The case Weber spoke about last night goes back a long way. It is a lawsuit filed by the left-wing Socialism and Freedom Parties (PSOL), which has been tried in the Supreme Court since 2017.
As specialists warn, even in obvious cases such as rape, many Brazilians are unaware that they have the right to a safe and free abortion in public health. Even the doctors and nurses who treat them do not often inform them of this possibility. And then there's ingrained conservatism, which places the embryo above all other considerations. From time to time, horrifying cases are reported, such as that of an 11-year-old girl who recently gave birth to a second baby as a result of the rapes of a relative.
The right to abortion is a politically toxic issue in Brazil. During the 13 years of government of the Workers' Party (PT), the only advance was to authorize it in cases of anencephaly and it was a judicial decision. During the last electoral campaign, Luiz Inácio Lula da Silva insisted on the position he defended years ago: it is a matter of public health and he personally is against it. He has never championed the cause, as did the Argentine Alberto Fernández, because he knows that in today's Brazil it is a recipe for losing electoral support.
Before retiring, Weber wanted to make sure the court addressed several momentous issues: abortion rights, early trials over last January's coup attempt, and indigenous rights to the lands inhabited by their ancestors before 1988.
Weber's replacement has given birth to an intense and ingenious campaign driven by black and feminist movements for President Lula to appoint a woman, better if she is black, to occupy the position. He insists that he is looking for someone of maximum confidence and everything indicates that he will appoint a second man, as he did in June, when he rewarded the lawyer who got him out of prison. In that case, there would be only one female judge in the Supreme Court.
A fact not trivial when the highest court has pending the debate on whether to decriminalize the interruption of pregnancy. The Supreme Court is now the only option to achieve that goal given that the current one is the most conservative Congress in history.
In one of her first interviews after assuming the position of Minister of Women, Cida Gonçalves openly warned of the risk of losing what has been conquered if the issue lands in the Parliamentary Chambers: "The way it is being raised today by Congress, in any discussion about abortion we will lose more than gain." The minister added that, "as far as it is possible to advance, we will advance. Now, if it is to go backwards, better to secure what is already guaranteed by law."