Opinion

Dear Supreme Court of Brazil, Use Your Power to Protect Women

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Dear Supreme Court of Brazil, Use Your Power to Protect Women

Sept. 26, 2023, 5:01 a.m. ET
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Video by Eliza Capai

Text by Joanna Erdman

Ms. Capai is a Brazilian filmmaker. This short film is adapted from her feature-length documentary “Incompatible With Life.” Ms. Erdman is a professor of health law and policy at Dalhousie University in Halifax, Nova Scotia.

When the U.S. Supreme Court overturned Roe v. Wade last summer, state anti-abortion laws came into immediate effect, clinics closed the same day, and people desperately searched for care against the clock of pregnancy.

That is to say, there is an urgency to injustice, much as the time for justice is always now.

These lessons are being tested in Brazil. Last week Brazil’s Supreme Court opened voting in a case to decriminalize abortion in the first 12 weeks of pregnancy. This would be a sea change in the country, as explored in the film above. Today Brazil prohibits abortion, with only narrow exceptions in cases of rape, risk to life and a fatal fetal condition known as anencephaly.

The judgment is long overdue. Known as A.D.P.F. 442, the case was filed in 2017 and asks the court to declare the criminal law on abortion unconstitutional and end the near total prohibition on abortion.

Last Friday, the departing chief justice, Rosa Weber, cast the first vote to decriminalize abortion in the case. Her replacement, Luis Roberto Barroso, could ensure that the case proceeds without delay. Brazil’s women cannot wait any longer for the equality and justice their Constitution promises them. The court must vote, and it must do so as soon as possible.

When filed, this case was likely the first to ask a Latin American court to decriminalize abortion. Since then, other courts in the region have acted. What began as tentative support for legislative reforms and congressional power to decriminalize abortion has swelled into the so-called green wave, a political movement for abortion rights. Courts started to issue judgments on access to abortion as a matter of fundamental rights and as part of nations’ constitutional framework, challenging rather than accepting the use of criminal law in abortion regulation. In a few countries, decriminalization as a constitutional imperative soon followed.

In 2021, Mexico’s Supreme Court declared the abortion provisions of a state penal code unconstitutional and two years later declared the same of the federal code. In 2022, Colombia’s Constitutional Court issued a sweeping judgment that decriminalized abortion until 24 weeks of pregnancy. These are principle-based judgments that allow abortion at the simple request of a person in need. They remove authorizations for care that were associated with little health or social benefit and were too often abused to delay and deny care. They are judgments in step with the everyday facts of fundamental rights and rooted in the strongest public health evidence.

The World Health Organization recommends the decriminalization of abortion to save lives and to protect health and well-being. The evidence is unassailable. Women suffer and die under these laws. Abortion will always carry this threat until it can be practiced without legal sanction.

This is because criminalization denies more than access to a single health care service; it carries broader social harms. It breeds fear among those who need care and those who could care for them, a cruel fate for the most vulnerable women, denounced by those who profess to care and harmed in a system that purports to help. In Brazil, abortion criminalization betrays the constitutional promise of universal care. People who flee from or are abandoned by the nation’s public health system must desperately seek care outside it. They face extraordinary burdens — burdens that some do not survive.

By the punishment that it inflicts and the secrecy and shame that it commands, criminalization separates people from their support networks, severs their social bonds and invites all manner of indignity and loss into their lives. It deepens the racial, class and gender inequalities of social life. In Brazil, Black and brown women, poor and young women and women from the most vulnerable regions of the country are more likely to have abortions, to be arrested for having them and to die from them. These are the women buried in the statistics on unsafe abortion in the country.

There are also the women surviving under the pain of forced pregnancy. They labor and give birth after fetal diagnosis, only to see their children suffer or die. Others grieve a future free of violence; a future of economic security; a future of a family nourished, clothed and housed; or a future of any life plan of their making.

This is the evidence for abortion decriminalization in living terms. The dissenting justices of the U.S. Supreme Court implored their colleagues not to turn away from it when ending the constitutional right to abortion. The courts in Colombia and Mexico relied on it to find abortion rights in the most fundamental precepts of their Constitutions: life and health, freedom from violence, equality and human dignity.

Years ago, this evidence was put before Brazil’s Supreme Court in a public hearing in this case, the most significant public engagement on abortion in a state institution. Today this evidence makes women’s lives the pressing burden of the court’s judgment.

Every year, hundreds of thousands of women have abortions in Brazil. Abortion is an everyday experience because it is an act by which people take care of themselves and others. As such, its protection as a constitutional right becomes an act by which we care for women in our most public sphere, a court of justice.

The criminalization of abortion requires every vote to be cast against it. There is nothing more to analyze, no more evidence to call; only a constitutional future for the women of Brazil and their fundamental rights awaits. The time for judgment is now.

Eliza Capai (@incompativel_com_a_vida) is a documentary filmmaker based in Brazil. Joanna Erdman (@joannaerdman) is a professor of health law and policy at Dalhousie University in Halifax, Nova Scotia.

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