Cablegate: Brazilian High Court Strikes Down Exception To

Published: Mon 8 Nov 2004 11:34 AM
This record is a partial extract of the original cable. The full text of the original cable is not available.
E.O. 12958: N/A
1. SUMMARY. On October 20, after a stormy debate, Brazil's
Supreme Federal Tribunal struck down a temporary injunction
issued in July that created a narrow exception (only the
third) in Brazil's abortion ban. The exception would allow
abortions in cases of anencephaly (where the fetus has no
brain). Threat to the life of the mother and pregnancy
resulting from rape are the two existing exceptions.
Anencephaly is linked to maternal nutritional deficiencies
and has a 100% mortality rate within minutes of birth. Last
July, when a judge issued the injunction it sparked a heated
public debate from medical, legal, religious, and human
rights officials. The case is not over: this ruling only
strikes down the injunction on technical grounds but does not
decide the underlying case. The high court must now decide
whether it will hear arguments on the merits or leave the
issue to legislators --who have shown little interest in
being drawn into the debate. END SUMMARY.
2. On 1 July 2004, a judge on Brazil's Supreme Federal
Tribunal (STF), Marco Aurelio Mello, issued a temporary
injunction that allowed anencephaly cases (where the fetus
has no brain) to become only the third exception to Brazil's
ban on abortion (reftel). Threat to the life of the mother
and pregnancy resulting from rape are the two existing
exceptions. That injunction remained in force until October
20 when, after tempestuous debate, the full Court struck it
down by a 7-4 vote. Mello and Judge Joaquim Barbosa nearly
came to blows during the arguments. The case is not over:
the full court decision struck down the injunction on
technical grounds but did not decide the merits of the
underlying case.
3. Anencephaly is linked to maternal nutritional
deficiencies and has a 100% mortality rate within minutes of
birth. Thus, when Judge Mello issued the injunction in July,
he kicked off a broad public debate over abortion rights with
jurists, health providers, women's rights activists, and
religious leaders lined up on both sides of the issue. After
the ruling, one attorney who argued in support of the
injunction noted that the Catholic Church "inundated the
judges' computers with e-mails". On November 7, speaking in
Rome to a group of Brazilian pilgrims, the Pope said, "I hope
that in every moment (Brazilian) officials continue defending
life from conception until its natural end". According to a
World Health Organization study Brazil has the world's fourth
highest anencephaly rate (8.6 per 10,000 births). In a
survey conducted in Sao Paulo a week before the high court
decision, 67% of respondents supported the right to terminate
an anencephalic pregnancy.
4. The only woman on the high court, Judge Ellen Gracie,
voted with the majority in striking down the injunction, but
noted that she did so on a legal technicality and was not
issuing an opinion on the underlying issue. If the merits of
the case come before the court, she is seen as likely to
support establishing anencephaly as a third exception to the
abortion ban. Judge Gracie has noted that the abortion ban
--like most of Brazil's criminal law-- was codified by the
1940 Penal Code, whereas the Constitution was written much
later, in 1988, after the end of the military dictatorship.
Thus, there remain issues on which the law and the
constitution need to be harmonized. In addition to Gracie,
three other judges (including Chief Justice Nelson Jobim) who
voted to strike down the injunction are seen as possibles to
vote in favor of a third exception to the abortion ban. If
they all change their vote, the anencephaly exception would
be legalized by an 8-3 majority. However, the high court may
also refuse to hear arguments on the merits, thus leaving the
current ban in place and leaving further action to Congress.
The Court's decision on whether to hear the case is expected
before year's end.
5. There are currently 24 abortion-related bills in various
stages of inactivity in the Chamber of Deputies (lower
house), but only two deal with cases of fetus inviability or
malformation. One of these was drafted in 1996 by the
current Mayor of Sao Paulo, Marta Suplicy. None of the bills
have any particular momentum at this time. Another bill, in
the Senate, which would have narrowly legalized abortion only
in cases of anencephaly was recently withdrawn by its author,
Senator Duciomar Costa (PTB-PA), under pressure from the
Catholic Church.
6. Since 1989, judges have authorized abortions in hundreds
of anencephaly cases (on a case-by-case basis) and at least
ten more were conducted in the wake of the July 1 injunction.
Brazil's books are full of laws that "don't take hold" ("nao
pega"), and the abortion ban is one. Studies in the late
1990s showed that as many as 31% of Brazilian pregnancies end
in abortion and that the majority of abortion patients are
married women who can afford private health plans. Poorer
women, more likely to have anencephalic fetuses, are also
more likely to utilize public health care where the ban on
abortions is more strictly observed. Thus, whether or not
the practice violates the letter of the law, abortions are
likely to continue to be accessible to many Brazilian women.
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