In a win for women’s rights despite continued widespread fears of an unprecedented attack on social programs in Brazil, the Supreme Court has stated that abortion in the first three months of pregnancy is not a crime, setting a precedent that could ease the longstanding ban on abortion except in very specific circumstances in the country.
Brazil’s top court released the decision Tuesday in a case appealing charges against five people who worked in an underground abortion clinic in the greater Rio de Janeiro area.
The abortion clinic was shut down in 2013 and staff were arrested when they were caught “red-handed” working at the facility. The court overturned the jail sentences for the five accused on the basis that there were no legal requirements to send them to prison.
But in the trial, one of the Supreme Court judges broadened the debate to bring in the question of decriminalizing abortion in the first trimester of pregnancy, arguing that a complete ban violates women’s reproductive rights.
Judge Luis Roberto Barroso argued in his decision that given that women carry the full burden of reproduction, “there will be full equality only if she is recognized as having the right to decide.”
He argued that women’s health and safety should be ensured without interference, saying, “Having a child determined by the Criminal Code constitutes a serious violation of the physical and psychological integrity of a woman.”
Barroso also noted that criminalization of abortion disproportionately affects poor and marginalized women who face even more restricted access to private services.
The position is specifically a response to the case of the five abortion clinic workers, but it has been interpreted as a positive step toward decriminalizing abortion, at least in the first trimester of pregnancy, and could provide strong and important precedent in future cases. However, it is also expected that the conservative Congress will try to block moves toward pro-choice legislation and legalization of abortion.
Abortion is outlawed in Brazil except in cases of rape or risk to the woman’s life. Women who seek abortions illegally can face up to three years in jail.
Latin America has seen a surge in debate about abortion laws in recent months in light of the suspected link between the outbreak of the Zika virus and the rise of the birth defect known as microcephaly at the epicenter of the epidemic in Brazil.
Earlier this year, a group of U.N. experts urged countries around the world to lift restrictive bans on abortions and overhaul policies that punish and discriminate against women who have had or want to have abortions and instead offer fully legal, safe, and affordable reproductive health care.
“Prohibition does not reduce the need and the number of abortions,” the U.N. experts wrote. “It merely increases the risks to the health and life of women and girls who resort to unsafe and illegal services.”
Meanwhile, Brazil’s unelected President Michel Temer, installed through a parliamentary coup against his predecessor Dilma Rousseff in August, has made swift moves to roll back women’s rights in the country. Along with appointing an all-male cabinet, one of Temer’s first moves as interim president was to strip the Secretariat of Policies for Women of ministerial status. He also put a staunch anti-abortion politician, Fatima Pelaes, in charge of the secretariat.
Former President Luis Ignacio Lula da Silva, Brazil’s most popular politician, advocated treating abortion as a public health issue, not a moral question. In an interview with The Intercept’s Glenn Greenwald earlier this year, he defended a woman’s right to choose and argued that Brazil is “still very behind” despite progress in many areas.
A 2007 survey by the polling agency Datafolha found that 65 percent of Brazilians thought the country’s current laws on abortion should not be modified. Only 10 percent supported full decriminalization.