Legislating Reproductive Rights

In May, the Brazilian parliament introduced a bill that included a gestational age limit for performing abortions, even in cases where the pregnancy resulted from rape. In practice, the bill would criminalize women who were victims of sexual violence, especially young girls. The proposal triggered a strong reaction from civil society, including protests in various cities. In response, the parliament has withdrawn the bill. The events illustrate how the Brazilian parliament has become a dangerous place for women’s sexual and reproductive rights – a situation that has worsened due to an institutional dispute between the parliament and the constitutional court.

Abortion laws in Brazil

Brazilian criminal law, which dates back to 1940, criminalizes the voluntary interruption of pregnancy, with two exceptions: when the procedure is done to save the life of the pregnant woman and when the pregnancy is the result of rape. In 2012, the Brazilian constitutional court expanded these exceptions by ruling that the voluntary termination of pregnancies involving anencephalic fetuses – those where the fetus’ brain is not developed – could not be considered a crime. Despite this, Brazil remains among the group of countries with the most restrictive access to abortion.  Due to restrictions on abortion, women end up undergoing the procedure in unsafe conditions. According to the WHO, unsafe abortion is defined as a procedure to terminate a pregnancy performed by individuals lacking the necessary skills, in an environment that does not meet medical standards, or a combination of both. Unsafe abortion is among the top five leading causes of maternal death in Brazil.

Currently, however, several lawsuits before the Brazilian constitutional court seek to change this: One denounces the obstacles women face in accessing legal abortion services; another calls for the decriminalization of voluntary termination of pregnancy up to the 12th week of gestation. In September 2023, Rosa Weber, the judge who was the rapporteur for the case, voted in favour of decriminalizing abortion up to the 12th week of pregnancy, signaling potential shifts in judicial interpretation.

The “Rapist’s Bill”

It was in this context that the Bill 1904/24 was introduced, proposing amendments to the Brazilian Penal Code, with two main purposes. First, the Bill seeks to establish a gestational limit on abortions where the pregnancy results from sexual violence, with abortion being prohibited if there is fetal viability, presumed after 22 weeks. Second, it suggests that victims of sexual violence who terminate a pregnancy after 22 weeks (or after fetal viability) should face penalties equivalent to those of homicide – a harsher punishment than that for the crime of rape itself. This is why the bill was nicknamed the “Rapist’s Bill”.

Who would be affected by this bill? Data indicates that the victims of sexual violence in Brazil are girls and women (88.2%), mostly black (52.2%), and aged no more than 13 (61.6%). Most of the time, they are raped by family members or people they know (84.7%), inside their own homes (61.7%).

In this scenario, Bill 1904/24, by imposing a time limit for accessing health services in the event of rape, effectively punishes the victims of sexual violence, that is children.  Children face greater challenges in denouncing violence suffered at home by family members and are often unaware of what it is like to be pregnant or how to navigate the legal and medical systems. For this reason, the bill has also been nicknamed the “Child Pregnancy Bill”, since the delay would have the practical consequence of imposing compulsory pregnancy on girls who have been victims of sexual violence.

A pattern of restricting reproductive rights

It is no surprise that the Brazilian legislature has produced a bill of this nature. In criminal matters, the Brazilian legislature is known for producing populist, tough-on-crime rules that lack grounding in scientific evidence.

The Bill can be seen as part of a larger trend to restrict abortion rights in Brazil. Over the last few years, several bills have been passed that aimed at restricting legal abortion or access to health services. For example, the proposal to impose a gestational age limit for access to legal abortion services after 22 weeks had been put forward by the medical profession in Brazil. However, the Brazilian constitutional court considered the measure abusive for restricting the possibility of legal abortion and suspended it.

Power struggles

In that regard, Bill 1904/24 also shines light on the relationship between the legislature and the constitutional court in Brazil. Since the promulgation of the 1988 Constitution, characterized by an ambitious bill of rights, the protection of minority rights, and the granting of broad powers to the constitutional court, the Brazilian constitutional court has been the main stronghold for minority rights. The legislature complains about the court’s prominence, despite not being able to realize the constitutional rights and not wanting to advance some anti-majority agendas. In recent years, this criticism has been embraced by the far right, which questions the very legitimacy of the court and claims that the legislature is the true representative of the Brazilian people.

In response to the court’s decisions, the legislature has passed bills that directly contradict its rulings. In the last two years alone, the legislature has passed a law to confront the court’s decision on indigenous lands, has pushed through a proposal for a constitutional amendment to oppose the decision on decriminalizing the possession of drugs for personal use and has put other bills in motion to attack the decisions on same-sex civil unions and against affirmative action for blacks in universities. Similarly, the case on the decriminalization of abortion has been criticized by legislators who believe that the issue should be dealt with by the legislature. Bill 1904/24 is yet another example of this, directly contradicting the decision of the constitutional court.

Despite this legislative push, the societal reaction to Bill 1904/24 was notably strong. Social mobilization, both online and in the streets, made legislators back down. Opinion polls show that although Brazilian society is against abortion, it is largely in favor of allowing it in the case of rape. The majority of the population also opposes imprisoning women who undergo the procedure. Brazilian society has shown the legislature that confronting the constitutional court will not be enough to regain prominence; it must also respect the rights of girls and women.