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Crime and Punishment: Illegal Abortion in Brazil


29.07.08     An estimated one million illegal abortions occur in Brazil each year, yet very few women have ever been imprisoned for seeking abortion care. That may be about to change.

In April of this year, officials in the Brazilian state of Mato Grosso do Sul took a brisk departure from the nation's relative "tolerance" of illegal abortion practice, arresting the head of a two decade-old family planning clinic for providing abortions and seizing the medical records of nearly 10,000 women.

As a result of the crackdown, the medical histories of 9,862 women were made public and the debate around decriminalization of abortions was re-ignited. Of the women whose records were seized, about a thousand are under suspicion of criminal abortions and 36 have been sentenced to date in an ongoing trial. Women convicted thus far have been offered alternative sentences of community service in local daycares at the discretion of judges, who are empowered to assign one to three years' prison sentence.

In Brazil, abortion is a crime except in cases of rape or proven threat to the mother's life.

Nationwide Repercussions

Although unsafe abortion leads to 250,000 hospitalizations in Brazil each year and is the third-leading cause of maternal death, the overall tolerance of illegal abortion had let the issue lapse somewhat in the public conscious. The recent events in Mato Grosso do Sul have brought it back to the forefront. The case is unprecedented in scale and in the violation of privacy laws that occurred, wherein private medical records were exposed to public perusal for weeks. Moreover, it is the first instance of direct, retroactive and en masse targeting of patients.

"In the past, they closed clinics and apprehended equipment. Now, in order to indict women and produce evidence against doctors, the police are handling medical records which by law should only be interpreted by a mediating physician," says lawyer and reproductive rights specialist Carmen Hein de Campos. "A very dangerous precedent has been set."

Beatriz Galli, of Ipas Brasil, warns, "This case is an alarm signal. It shows that there is a strategy of mass persecution and indictment of women... in order to demonstrate that the law has not fallen into disuse, that it is being enforced."

"In cases where proof exists that these women practiced abortion, it is not up to me to choose not to indict them," Paulo César dos Passos, chief prosecutor in the Mato Grosso do Sul case explained to Agência Brasil. "The Penal Code clearly establishes that the practice of abortion is a crime [...] and I cannot avoid carrying out the law. It is not about a personal position." In response to protests, he argued that law enforcement cannot be held responsible for "an issue that must be confronted by public policy and by congress, stating whether abortion should continue to be a crime or not."

Legalization Defeated in Congress

In light of the events in Mato Grosso do Sul, a special hearing of the Brazilian House of Representatives was called on June 18th. In the hearing, Nilcéia Freire, Minister of the Special Secretariat for Women's Policies, spoke in favor of legalizing abortion via a bill that would soon be voted on in congress. In other nations where abortion has been legalized, she argued, the death rate from unsafe abortions is close to nil, and the number of overall abortions has not increased.

"And the responsibility of the 9,862 men presumably associated with these pregnancies?" Minister Freire wrote in leading paper O Globo. "Might that be remembered and pursued legally at some point?"

Soon thereafter the bill that would have legalized abortion, after languishing in congress for sixteen years, was voted on and defeated. Reproductive rights activists had attempted to remove the bill from the agenda due to its slim chances of passing, but to no avail. According to Campos, "It is virtually impossible to decriminalize abortion with the current legislative makeup. We first need to win over public opinion."

Roughly one-third of the Brazilian congress belongs to the "Parliamentary Front for Families and In Support of Life." Many are closely tied to religious interests. Congressman Henrique Afonso openly opines, "The legalization of abortion is in the interest of those who defend population control, those who are concerned with building a ‘superior race' and those who sell the tissue of aborted fetuses." Another congressman, José Bassuma, argues that to legalize abortion is unconstitutional, violating the citizen's right to life. Both are members of President Lula's Workers' Party, considered one of the more left-leaning in Brazil.

"How in Brazil, with so much forward progress in alternative energy, social policy, the economy... can we still be so behind on this issue?," says Galli.

The Mato Grosso do Sul case does seem to be part of or inspiration for a broader strategy. Since April, two more clinics in different states have been shut down, each with the new practice of seizing patient records.

Looking Ahead

Abortion is no exception to the Brazilian status quo: it discriminates sharply along class lines. Women able to pay cash for abortion - which costs anywhere from two to ten times the monthly minimum wage - have relatively easy access to clandestine but safe abortion care provided by qualified doctors. But as the majority of Brazilians are poor, most women resort to self-induced or otherwise unsafe abortions, often via medication.

"The current laws are unjust. They discriminate against the most vulnerable women: those without money, or education... they are the ones who run the risk of death," Galli argues. "In addition to the legalization of abortion, we need to make health services available for all."

The presidency and cabinet are more openly supportive of legalizing abortion than the overall population of this, the world's largest Catholic country. Research indicates that 65 per cent of Brazilians believe abortion should remain illegal, and the current congress has repeatedly voted against acts to legalize or liberalize access.

Last year, the Ministry of Health set forth its position in favor of making abortion a public health issue, rather than a criminal one. It also launched a widespread birth control subsidy program and educational campaign (both coincidentally on the eve of the Pope's visit last year). Since then, however, the president and ministers have stopped speaking out on the topic, presumably due to strong dissent from religious groups and their affiliates in the legislature.

The recent clampdowns and their repercussions have forced a largely anti-abortion public to reflect upon whether criminal sentences are the best solution, and whether women alone should be left to answer for an unwanted pregnancy.

"[The recent cases] have had some positive outcome, in the sense that they have given us more solid and concrete arguments," says Galli. "They show that a law from the 1940s does not deal with the current reality. It produced a reaction that [the authorities] didn't want - people began talking about human rights, about discrimination against women."

"The decriminalization of abortion has always been a difficult challenge in Brazil," said Campos. "It feels as though everything is still inside a pressure cooker."

"On the other hand," she added, "abortion has never been discussed so much."