Bruna Frascolla
Brazil's government has quietly legalized abortion at any stage - no police report needed, no rapist punished. How a 2005 ordinance, revived under Lula, and a 2024 judicial maneuver bypassed Congress, the Constitution, and public opinion.
From an electoral standpoint, Brazil and the United States are diametrically opposed regarding abortion. In Brazil - where, in theory, abortion is a crime -, the issue has been a battleground at least since the 2010 election. It's always the same: the anti-PT candidate accuses the PT candidate of being in favor of abortion, and the PT candidate swears that he is against abortion. (PT is Lula's party.) Communists go to mass accompanied by their marketing team and take pious photos, kneeling, looking upwards. Progressives in favor of abortion, concentrated in the middle class, lament every year that the PT cannot run a truly progressive campaign because it needs to please the obscurantist electorate. In the United States, on the other hand, those against abortion are considered too radical for the elections and have to be hidden during the election period.
Contrary to popular sentiment and the letter of the law, the new prenatal booklet developed by the Lula government for the public health system makes it clear that abortion is de facto legal in Brazil. According to the newspaper Gazeta do Povo, the new booklet launched by the government on May 12 replaces the terms "woman" and "mother" with "people who gestate," and even suggests abortion. I quote the newspaper article:
"In the subchapter dedicated to information on 'violence and pregnancy,' the booklet explains that 'it is not mandatory to file a police report to receive health care' in cases of pregnancy resulting from sexual violence, because 'the interruption of pregnancy is a legal right if that is your decision.' The information is based on Ordinance GM/MS No. 1,508, of September 1, 2005, which states that 'victims of sexual violence can request the interruption of pregnancy in the SUS (Brazilian Public Health System) without the need for a police report or judicial authorization.' This ordinance was revoked in 2020 (GM/MS No. 23/2020). In 2023, at the beginning of Lula's third term, the Ministry of Health again allowed abortion without a police report."
Like every country with a Catholic background, Brazil is historically against abortion. During the Estado Novo (New State) period, when eugenics was in vogue, punishment was abolished for raped women who induced abortions, as well as for those who helped them. At the time, it was a private matter, since public hospitals did not perform abortions. Everything changed, however, in 1998, when Health Minister José Serra released a technical note that obliged the public network to perform abortions in cases where it was not a crime. In 2002, the same José Serra, supported by President Fernando Henrique Cardoso, famous for privatizations, ran for president against Lula. This was Lula's first victorious election, and his first term was from 2003 to 2006.
In 2005, therefore already in his first term, the Lula government passed the aforementioned ordinance, which facilitates abortion for women who so desire: they only need to fill out a form stating that they were raped, without the need to file a police report. This should be a scandal, because it allows women, and especially girls, to be raped repeatedly without the rapist ever being punished. In the case of minors, pregnancy is the only glaring proof that the girl is being abused.
In 2006, as in all Brazilian elections held between 2002 and 2014, the PT's main opponent was the PSDB, the neoliberal party of Fernando Henrique Cardoso. In 2006, the candidate was Geraldo Alckmin, who is now Lula's vice-president; and, as far as I remember, this could the first election in which the label of pro-abortion was imposed on the left in general. There was also no polarization around customs as there is today - and that is a thing of the 2010s. The economy was doing well, Lula won his second term.
In 2010, the PSDB (Brazilian Social Democracy Party) once again tested the name of José Serra - the same Serra who had included abortion among the services offered by public hospitals. Serra accused the PT members of being abortionists. The PT members, in turn, claimed that Serra's wife had an abortion during the exile. The PT, they argued, were pro-life, and had a number of liberation theologians to vouch for it.
Dilma Rousseff won her first presidential election in 2010. It was a difficult government, marked by the timid beginning, in 2013, of right-wing popular demonstrations, led by people wearing the Brazilian national team jersey. In 2014, Dilma won a close election against Aécio Neves of the PSDB, but her government was cut short by impeachment. In 2018, the big news was Jair Bolsonaro, a candidate from a small party with no budget. The PSDB candidate, Geraldo Alckmin, came in fourth place with only 5% of the vote. After the right wing awakened to the culture war, the main anti-PT candidate became Jair Bolsonaro. Imprisoned, Lula was prevented from running and nominated Fernando Haddad, who, along with his running mate, the communist Manuela D'Ávila, became good Catholic defenders of the family during the election.
As we have seen, it was only in 2020 that the criminal ordinance of 2005, which left rapists free to impregnate girls without being punished, was suspended. It was during the Bolsonaro government, a right-wing government elected on the basis of a moral agenda. In 2022, however, the Supreme Federal Court had released Lula, who won a close election, in which he was strongly supported by the NGO sectors of the left and by the opposing elites themselves (Alckmin is his vice-president). And the Electoral Court prohibited Bolsonaro's campaign from associating Lula with abortion. As soon as he won the election, Lula overturned the Bolsonaro government's decree and reinstated the absurdity of 2005, from Lula's first administration.
For most of the time, for pregnancies supposedly resulting from rape, the position of the Federal Council of Medicine was followed, which was to perform the abortion up to 12 weeks. The Council defends that abortion should be decriminalized within this period.
In 2022, there was a lot of commotion surrounding a pregnant girl who was prevented by doctors from having an abortion and was removed from her home by a judge. A feminist website linked to a network of NGOs with access to the mainstream press reported that the girl had been raped and the judge punished the child. It took some time to discover that the girl was removed from her home because that was where she had sex with her stepfather's son, also a child, with the knowledge of their parents, who saw them as boyfriend and girlfriend. In addition, the pregnancy was at a much more advanced stage than the mother claimed, which is why the doctors did not want to perform the abortion. In the end, the Public Prosecutor's Office forced the hospital to perform the abortion.
Brazil was left in a regulatory vacuum concerning the gestational age at which abortion is permitted. During Lula's third term, in February 2024, the Lula government published a technical note that allowed abortion at any gestational age. Due to the reaction, the technical note was revoked the following day. In March 2024, the Federal Council of Medicine passed a regulation prohibiting doctors from performing abortions after 22 weeks (five and a half months). PSOL, a woke party that compensates for its few votes with broad access to the judiciary and the Public Prosecutor's Office, filed a lawsuit with the Supreme Federal Court. In May, Minister Alexandre de Moraes unilaterally suspended the effectiveness of the rule, and after the appointed minister defended the rule, Moraes suspended the judgment, keeping the suspension in effect to this day. The logical consequence is that there is no restriction on advanced pregnancies.
Therefore, Brazil's new prenatal booklet invites pregnant women to consider whether they really want to continue the pregnancy: "If you feel bad, embarrassed, or realize that you did not want the sexual relationship that resulted in this pregnancy, seek help from the UBS [Basic Health Unit] team." A woman can retrospectively decide that she was raped, and there is nothing wrong with that, since 2005 the government has decided that it does not need to punish rapists to perform abortions.
All of this occurred without any popular participation: ordinance, technical note, Justice maneuver. Thus, we can say that in 2005 there was a silent coup that legalized abortion in Brazil, and that this coup was radicalized in 2024, since it legalizes abortion at any gestational period.
The situation also forces us to consider the quality of pro-life leadership in Brazilian politics. A hypothetical Statute of the Unborn Child, which would risk punishing women who have suffered miscarriages and would offend the morality of many by punishing a real rape victim, serves to mobilize radical activism, but not to build consensus. If the Brazilian right were organized, it would transform into law the Bolsonaro government's resolution that requires reporting a rape in order to obtain an abortion. Then, it would be a matter of reinforcement, with the police actually investigating those who used the service.