Supreme Court votes in favor of abortion in cases of anencephalia

At the beginning of 2004, a case in the form of a writ of habeas
corpus came before the Brazilian Supreme Court in which a pregnant woman
sought permission to have an abortion because she was carrying a fetus
with a serioius defect known as anencephalia. Before the court reached a
decision, the baby was born and died. The court decided the case was
closed.

 However, shortly thereafter, the National Confederation of Health
Providers (“CNTS”) filed a lawsuit at the Supreme Court in favor of
making such abortions legal. Because the case dealt with “fundamental
precepts” in the Constitution (Article 5) and the Civil Code (lei
10.406/02) that recognize the right to life and life as beginning at
birth, the case became known officially as “Arguição de Descumprimento
de Preceito Fundamental (ADPF) 54.”

On July 1, 2004, the Supreme Court justice selected to handle ADPF 54
(“relator”), Marco Aurelio Mello, issued an injunction permitting
abortions in cases of anencephalia. On August 18, 2004, the country’s
then chief prosecutor (“procurador-geral da República”), Claudio
Fontelles, sent the Supreme Court a brief opposing legalization of
abortion in cases of anencephalia. On October 20, 2004, the full Supreme
Court voted (7-3) to suppress justice Mello’s injunction (the following
justices (“ministros”) voted against the injunction: Eros Grau, Joaquim
Barbosa, Cezar Peluso, Gilmar Mendes, Ellen Gracie, Carlos Velloso and
Nelson Jobim. Justices Carlos Ayres Britto, Celso de Mello and Sepúlveda
Pertence voted in favor).

In August and September, 2008, public hearings on the case were held
before the Supreme Court. Scientists, specialists, religious leaders and
politicians testified. Almost a year later, in 2009, the then acting
chief prosecutor (“procuradora-geral da República interina”), Deborah
Duprat, sent the Supreme Court a brief in favor of allowing anencephalia
abortions.

Finally, this year ADPF 54 returned to the Supreme Court docket and on April 11, 2012, the justices began voting.  

At the moment, Brazilian legislation (that is, the Penal Code, which
dates from the 1940s) permits abortion only in cases of rape and when
there is risk to the mother’s life. Abortion under any other
circumstances is a crime punishable by one to three years in jail for
the mother, and one to four years in jail for the doctor performing the
abortion.

The final decision was 8-2 in favor of allowing abortions when there is
anencephalia. The majority opinion basically noting that as a fetus
with anencephalia does not have a brain and will not survive, there is
no crime in such abortions. The opposition focused on a narrow
definition of life and fear that this decision could be a wedge that
would allow more kinds of abortions to become legal. The justices who
voted in favor of decriminalizing abortions in cases of anencephalia
were: Gilmar Mendes, Marco Aurélio Mello, Rosa Weber, Joaquim Barbosa,
Luiz Fux, Cármen Lúcia, Celso de Melo and Carlos Ayres Britto. Justice
Ricardo Lewandowski and the Chief Justice, Cezar Peluso voted against
decriminalizing. Justice Antonio Dias Toffoli recused himself because
when he was head of the office of government attorneys (“advogado-geral
da União – AGU”) he positioned himself in favor of decriminalization.