The Superior Court of Justice of Brazil revoked the pretrial detention order issued against staff and patients of a clinic that was alleged to have been performing clandestine abortions. The Court found that criminal laws against abortion were unconstitutional, and that the criminalization of voluntary termination of pregnancy during the first trimester was incompatible with the protection of multiple fundamental rights of women.
In Brazil, Article 128 of the Penal Code decriminalizes voluntary termination of pregnancy under two circumstances: 1) danger to the woman’s life and 2) pregnancy as a result of rape.
In March 2013, the prosecutor for Rio de Janeiro filed charges against multiple defendants, including patients, nurses, and doctors, at a clinic where clandestine abortions were allegedly taking place. The Fourth Criminal Court of the District of Duque de Caxias, Rio de Janeiro, granted pretrial release to the defendants. However, in 2014, on a motion by the prosecutor, the Fourth Criminal Chamber ordered them remanded to pretrial custody to safeguard public order and ensure enforcement of criminal laws.
The defendants lodged a writ of habeas corpus, claiming illegal or arbitrary detention. The case was heard by the Superior Court of Justice.
The Superior Court of Justice set out to analyze the legality of the pretrial detention under constitutional and criminal law. The Court focused on three issues: 1) habeas corpus as an extraordinary remedy, 2) nonfulfillment of the requirements for pretrial detention under Article 312 of the Code of Criminal Procedure, and 3) unconstitutionality of the criminalization of voluntary termination of pregnancy during the first trimester.
1) Habeas corpus as an extraordinary remedy
The Court noted that although the defendants lodged a writ of habeas corpus instead of the ordinary constitutional remedy available for similar cases, the exceptional importance of the case made it necessary to review the merits of the case to determine whether the Court could proceed ex officio.
2) Nonfulfillment of the requirements for pretrial detention under Article 312 of the Code of Criminal Procedure
The Court started by noting that the pretrial detention order did not allege individualized elements showing the need for preventive custody in order to prevent risk of recidivism. It found that the decision to order pretrial detention merely invoked the general, abstract seriousness of the crime of “causing an abortion with the consent of the pregnant woman” and the need to enforce criminal law.
The Court therefore found that the requirements were not met for pretrial detention under Article 312 of the Code of Criminal Procedure, which requires a finding of risk to public or economic order, risk of failure to appear for criminal proceedings, or the need to ensure enforcement of criminal law.
The Court went on to note that in any case, the defendants did not have criminal records, had stable places of residence and work, had obeyed all summons to appear before the court, and if convicted, could serve their sentences under day release conditions, so pretrial detention could not be justified on these grounds. It cited Supreme Court cases including HC 109.449, Rel Min Marco Aurelio; .. and HC 115.623, Rel Min .. Rose Weber in finding the pretrial detention order illegal, because the legal requirements for it were not shown even empirically. While the Court found that the absence of the required conditions for detention was sufficient in and of itself to find the detention illegal, it went on to examine the constitutionality of voluntary termination of pregnancy in the first trimester in light of the facts of the instant case.
3) Unconstitutionality of the criminalization of voluntary termination of pregnancy during the first trimester as a violation of women’s human rights and a disproportionate measure
The Court analyzed the constitutionality of Articles 124 and 126 of the Penal Code, which outlaw termination of pregnancy, noting that the existence of a crime is a prerequisite for ordering pretrial detention under Article 312 of the Code of Criminal Procedure.
The Court observed that in order for the criminalization of any particular conduct to be constitutional, an important legally protected interest must be at stake, the conduct at issue must not constitute the legitimate exercise of a fundamental right, and the state action must be proportional to the conduct.
The Court concluded that the criminalization of abortion during the first trimester of pregnancy violated multiple fundamental rights of women and did not comply sufficiently with the principle of proportionality. In its analysis, the Court considered the premise that abortion is a field of medicine that requires navigating complex moral issues, among other issues. It confirmed that the state and society have the obligation of addressing these issues through sex education, distribution of contraceptives, and comprehensive support for women who wish and choose to become mothers and who face adverse circumstances. The Court went on to note that by finding the criminal laws against termination of pregnancy unconstitutional, the intent was not to encourage more widespread use of the procedure, but to make it safer and more accessible for women.
The Court cited domestic and international jurisprudence and legal scholarship in finding that criminalization of abortion in the first trimester violates A) women’s sexual and reproductive rights and rights to autonomy, physical and mental integrity, equality, to live free of discrimination; and B) the principle of proportionality.
A) Women’s human rights to autonomy, physical and mental integrity, equality, and non-discrimination, and sexual and reproductive rights
Right to autonomy: The Court held that criminalization of abortion violated women’s right to autonomy. It noted that a key element of this right is the ability to control one’s own body and make all decisions related to it, including whether to terminate a pregnancy. Therefore, the state, police, prosecutors, and judges must not reproduce gender stereotypes regarding motherhood, making the womb into an instrument to be used by society and allowing women to lose their personal autonomy to be, think, and live in accordance with their life plans.
Right to physical and mental integrity: The Court further held that the criminalization of abortion violated women’s right to physical and mental integrity. It noted that the right to integrity protects persons against improper physical and mental interference, including interference in women’s rights to health and safety. The Court concluded that being required by criminal law to have a child constitutes a serious violation of women’s right to physical and mental integrity.
Sexual and reproductive rights: The Court also found that the criminalization of abortion violated women’s sexual and reproductive rights, including the right of all women to decide, free of violence and discrimination, when and how many children to have, and to obtain the highest possible level of sexual and reproductive healthcare. It cited numerous international human rights instruments, such as the Cairo Conference report, to illustrate that for millennia, women have faced oppression, violence, and discrimination at the hands of men who sought to control their lives and sexual and reproductive autonomy. For this reason, and since it is only women who become pregnant, their wishes and rights must be protected all the more vigorously. The Court concluded that the criminalization of termination of pregnancy affects women’s capacity for reproductive self-determination and to decide without coercion whether to become mothers. Furthermore, by requiring women to carry unwanted pregnancies to term, the state contributes to risks to their health, which may increase rates of maternal death.
Gender equality: The Court held that the criminalization of termination of pregnancy violates gender equality by perpetuating women’s historically subordinate position to men and institutionalizing socioeconomic inequalities based on discriminatory and stereotyped notions regarding the social role attributed to women because they have the possibility of becoming mothers.
Social discrimination and disproportional impact on poor women: The Court noted that the criminalization of abortion leads to social discrimination that disproportionately affects women living in poverty, because they lack access to private healthcare providers and/or facilities and are unable to use the public healthcare system to have an abortion performed. It reiterated that by criminalizing termination of pregnancy, the state deprives women of the possibility of having a safe medical procedure performed. It is not unusual for poor women to have to turn to clandestine clinics that lack medical infrastructure and safe procedures to reduce risk of injury or death.
The Court concluded that the criminalization of termination of pregnancy in the first trimester violates multiple fundamental rights of women and is therefore unconstitutional and unlawful.
B) Violation of the principle of proportionality
Although the Court had already determined that the criminalization of termination of pregnancy violated women’s human rights, it went on to perform an analysis of the principle of proportionality to determine whether the criminalization was constitutional.
The Court held that the criminalization of abortion could be justified only if (i) there is a legitimate aim to protect the unborn fetus’s right to life; (ii) there is no other means of protecting this legal right that is less restrictive of women’s rights (necessity); and (iii) the measure may be justified on the basis of a cost-benefit analysis (strict proportionality).
Regarding the legitimate aim requirement, the Court cited the World Health Organization’s position that abortion is a public health issue. It is clear that abortion rates in countries in which the procedure is allowed are very similar to those of countries in which it is illegal, showing that criminalization does not create a significant impact on the number of abortions. In fact, the opposite may be true: In countries in which it is legal, the abortion rate is 34 out of every 1,000 women of childbearing age, compared with 37 out of 1,000 in countries where it is outlawed.
The Court described criminalization of abortion as a “merely symbolic disapproval of the conduct” from a legal standpoint. From a medical perspective, it has a particularly prejudicial effect on poor women who lack access to care.
Turning to the necessity requirement, the Court examined whether there were means other than criminalization of termination of pregnancy that could serve to protect the life of the fetus but impose lesser restrictions on women’s rights. It reiterated that criminalization violates women’s rights to autonomy and integrity, their sexual and reproductive rights, and their rights to equality and to live free of discrimination. It also noted again the disproportionate impact criminalization has on women living in poverty. The Court concluded that although the use of criminal law may have some minimal effect as a deterrent to abortion, there are in fact other effective means of protecting the rights of the fetus while imposing lesser restrictions on women. An example of a policy that many countries around the world have successfully instituted as an alternative to criminalization is legalizing abortion in the first trimester of pregnancy.
The Court went on to opine that the state should take measures to address economic and social factors that lead to unwanted pregnancies. These measures may include family planning programs, distribution of free contraceptives, specialized care for pregnant women, and sex education.
Finally, regarding the question of strict proportionality, the Court turned to standards established in comparative jurisprudence, particularly the Roe v. Wade case from the Supreme Court of the United States and the R. v. Morgentaler case from the Supreme Court of Canada, concluding that by taking the decision of whether to terminate a pregnancy away from women, the state fails to establish a standard that fairly balances the interests of the fetus and the rights of the woman.
The Court therefore found that criminalization of abortion in the first trimester is not a proportional measure because it affects unlawfully and disproportionately the human rights of women.
The Superior Court of Justice granted the writ of habeas corpus ex officio, revoking the pretrial detention order issued against the clinic staff and patients and releasing them.