In Brazil, women, girls, and pregnant persons who terminate their pregnancies outside of the three legally permitted grounds (risk to woman’s life, rape, or anencephalic fetus) risk being sentenced to up to three years in prison. This prohibition leads them to resort to unsafe abortions — the fourth leading cause of maternal death in Latin America’s largest country. The Brazilian Federal Supreme Court (STF), however, has a historic opportunity to change this troubling reality.
The STF is deciding on a constitutional challenge brought in 2017 (ADPF 442) against articles 124 to 127 of the Brazilian Criminal Code, which seeks to decriminalize abortion until week 12 of pregnancy. In 2018, Rosa Weber, chief justice and rapporteur of the case, called a public hearing on the matter, where more than 40 organizations presented their arguments both in favor and against decriminalization. Last Friday, September 15, Chief Justice Weber, who will retire on October 2, initiated the deliberation process and voted in favor of the motion to decriminalize. The remaining justices will vote once the court resumes session in person. In this Expert Column, we will address Chief Justice Weber’s main arguments in her vote and some takeaways from Weber’s legal reasoning.
Summary of Justice Weber’s Vote
The vote begins by addressing an argument raised by the federal attorney general: that abortion is a matter that should be left to elective representatives, a similar argument to the one adopted by the U.S. Supreme Court in Dobbs v. Jackson. Weber categorically rejects this argument. She claims that, since Brazil is a constitutional democracy, the STF has the power both to determine the constitutionality of laws passed by Congress, and to ensure that the rights of minorities are respected. Deciding on the constitutionality of abortion criminalization, according to Weber, does not violate the separation of powers principle. Judicial review, instead, reinforces this principle and strengthens the system of checks and balances.
Weber’s analysis of the merits revolves around four aspects: (1) constitutional protection of the right to life; (2) women’s rights; (3) sexual and reproductive rights; and (4) reproductive social justice.
First, Weber analyzes the protection of the fetus in Brazilian constitutional law and concludes that the Brazilian Constitution only grants rights to those who have been born, and that the right to life is not absolute, but gradual and incremental. As proof that the right to life is not absolute, Weber notes that the constitution itself allows the death penalty in case of war. The fact that a fetus cannot hold any constitutional rights does not mean, however, that it does not hold “value worthy of protection.” The controversy between the protection of this value and the fundamental rights of women must be resolved through a proportionality test that Justice Weber addresses later in her decision.
Second, the vote stresses that the right to reproductive health is part of women’s fundamental rights protected by the constitution, and that forced pregnancies are a form of institutional violence. It highlights the importance of autonomy as an essential aspect of the right to freedom, which includes reproductive freedom. Weber does not, however, refer to a notion of a constitutional autonomous right to decide, as other courts in the region have done.
Third, Weber affirms that sexual and reproductive rights are protected by the Brazilian constitution directly through the rights to health, social security, and family planning, and indirectly through the rights to equality, privacy, freedom, and private life. She also underlines that women’s reproductive freedom, within the realm of family planning autonomy, are shielded from unjustified state interference. Based on an analysis of international and comparative law, Weber concludes that Brazil has an obligation to create a “system of reproductive social justice” based on four essential elements of the right to health: availability, accessibility, acceptability, and quality, as defined by CESCR General Comment n. 22.
Fourth, Weber states that promoting women’s reproductive health is a matter of social justice and that contemporary constitutionalism places sexual and reproductive health as a public health and human rights issue. In this context, a reproductive social justice system, according to Weber, must provide adequate responses, consisting of preventive measures aimed at avoiding unwanted pregnancies and remedial measures that ensure access to safe abortion services. Therefore, abortion should be considered an appropriate response within the reproductive justice framework, alongside educational and preventive measures.
Finally, Justice Weber applies the proportionality test to assess the use of criminal law as a way to protect the unborn. The vote concludes that abortion criminalization: (1) is not adequate as it is unsuitable to achieve the purpose of protecting the unborn since data shows that it does not discourage abortions; (2) does not meet the threshold of necessity, as public health policies have proven to be more effective in protecting the fetus and the woman’s life than abortion criminalization; and (3) is disproportionate as it gives absolute prevalence to the unborn, perpetuates gender-based discrimination, and has a disproportionate impact on Black and poor women.
Three Takeaways from Justice Weber’s Legal Reasoning
The emphasis given to reproductive social justice captures Weber’s belief in the need for a comprehensive and rights-based approach to reproductive healthcare that prioritizes individual autonomy and recognizes the broader implications of women’s reproductive health on public health and human rights. This need to replace the use of criminal law with public policies is in line with developments in international and comparative constitutional law. The Colombian Constitutional Court, in its 2022 decision decriminalizing abortion until week 24, urged the executive and legislative branches to implement a comprehensive public policy that protects both women and the unborn, without affecting women’s rights and dignity.
Second, Justice Weber’s vote not only rules abortion criminalization as unconstitutional in the first trimester, but also defines abortion in the first trimester as a right — giving rise to a new constitutionally protected right.
As a last takeaway, the vote is strongly influenced by developments in international and comparative law bringing a global perspective and an international human rights approach to her legal reasoning. Weber discusses a large number of treaties and decisions of the universal, European, and Inter-American human rights systems; action plans adopted at international conferences; as well as constitutional jurisprudence of various high courts in different regions of the world.
Justice Weber emphasizes that the dialogue between national and international jurisdictions fosters the “migration of ideas and normative solutions” and that comparative experience enriches the argumentative assessment. She also stresses the binding nature of international human rights standards in Brazil’s legal framework and its obligation to apply the conventionality control doctrine given that Brazil is a state party to the American Convention on Human Rights and the Inter-American Court of Human Rights.
While the final outcome of this constitutional challenge remains uncertain, Justice Weber’s vote is an important step towards the full realization of women’s rights in Brazil. If the remaining justices embrace the historic opportunity presented here and the majority decision is favorable, the case will represent a milestone and a victory in abortion decriminalization in Latin America.
Note: “Woman,” rather than pregnant person, may be used throughout this piece to reflect the language used in the laws and judgment at issue. The authors acknowledge the importance and support the use of inclusive language to approach this issue.