Abortion should be discussed in Congress rather than Supreme Court, says Temer

In a statement in record filed with the Supreme Court (STF) this week, President Michel Temer has said the issue of abortion should be discussed in Congress rather than in court.

The president was asked by the Supreme Court's Justice Rosa Weber, who is overseeing a case in the top court, to provide his stance on a dispute filed with the court that challenged provisions from Brazil's Penal Code, calling for abortion within the first 12 weeks of pregnancy to be made legal.

Represented in court by Attorney-General Grace Mendonça, Temer invoked a concept used by Justice Luís Roberto Barroso—“reasonable moral disagreement” to claim the lawsuit was wrong.

The president argued that the topic is so controversial on moral, philosophical, and religious levels, that only Congress—as the institution that represents the diversity of Brazilian society, he claimed—would be capable of discussing the issue and reconcile the different views.

Should the case continue, he went on, the court should refrain from issuing any injunctions that produce early effects, because “such a complex issue would require broader discussion” before any court rulings could be handed down.

Background

Rosa Weber is the judge overseeing a lawsuit filed by PSOL party and Instituto Anis, a non-governmental women's rights advocacy group seeking the decriminalization of abortion within the first 12 weeks of pregnancy.

The plaintiffs are also seeking an injunction to suspend all arrests, police inquiries, ongoing prosecutions, and effects of court rulings related to abortive procedures carried out within the first three months of pregnancy, until the Supreme Court has settled the issue.

In Brazil, abortion is only permitted in the event of fetal anencephaly, pregnancy from rape, or when pregnancy poses risks to the woman.

For all other situations, Articles 124 and 126 of the Penal Code dating back to 1940 apply. According to these provisions, self-induced abortion—whether or not aided by others—is a crime punishable by one to three years' imprisonment. Causing abortion on others carries one to four years' jail sentences.

Other lawsuits

In November 2016, Justice Rosa Weber said abortion within the first three months of pregnancy should become legal under all circumstances. Back then, the Supreme Court was ruling on a jail appeal in connection with an abortion case—five people had been arrested in a back-alley abortion facility in Rio.

Justice Luís Roberto Barroso had asked to examine the case records, and eventually ruled that criminalizing abortion within the first three months of pregnancy was a violation of a woman's sexual and reproductive rights, their freedom to make choices, and their physical and mental integrity. Weber handed down a similar opinion.

Justice Edson Fachin agreed with the rationale, which prevailed in the final ruling, but the effects of the court's decision were limited to that specific case.

Another suit seeking to legalize abortion in case of a Zika infection at pregnancy—which can result in fetus malformation—is pending under the supervision of Chief Justice Cármen Lúcia. The case was due to be tried in December, but it turned out the hearing did not happen, and no new dates have been set since.

Translated by Mayra Borges