ADPF 442: Is abortion decriminalization in Brazil in the works?

Following years of deliberation and protest, Brazil could be looking at a new development on its road to reproductive justice due to the Arguição de Descumprimento de Preceito Fundamental 442, or the ADPF 442 case. According to articles 124 and 126 of its Penal Code, which dates back to 1940, pregnant individuals in Brazil currently face the risk of detention for getting an abortion unless in cases of statutory rape or when the life of the pregnant individual is endangered. As a result of a Supreme Federal Court (STF) decision made in 2012, abortion is also criminalized in cases when anencephaly is detected (when the baby is born without parts of the skull or brain). Yet, this could change if the STF votes ADPF 442 into action.

In 2017, the ADPF 442 case was filed against the STF, arguing that the STF should decriminalize abortion until the twelfth week of pregnancy and that the state’s current law on abortion is unconstitutional. In particular, the case maintains that criminalizing abortion stands in opposition to the Federal Constitution of Brazil, as well as global human rights agreements ratified by Brazil. It should be noted that ADPF 442 was one of the first to propose abortion decriminalization to a Latin American Court at the time it was filed. 

Brought forth by local groups in Latin America, such as Anis (the Institute for Bioethics, Human Rights and Gender), ADPF 442 has been pending since 2018. However, as a result of former STF President Justice Rosa Weber organizing a public hearing and opening a virtual vote on Sept. 19, the case once again came into the limelight. Consequently, justices entered an open voting period between Sept. 22 and Sept. 29. While no date has been formally set, the remaining justices are expected to cast their votes on the case at a public hearing in the next few months.

Submitting her vote right before retiring in October, Weber argued that women’s sexual and reproductive rights are fundamental individual rights protected by the Brazilian constitution. Additionally, Weber asserted that forcing a woman to continue with a pregnancy represents institutional violence, positioning women as an “instrumento a serviço das decisões do Estado e da sociedade (an instrument whose decisions are made by the State and greater society).”

Brazil’s current abortion law criminalizes abortion in almost all circumstances. However, the Penal code has not been successful in decreasing the number of abortions in the country, as one in every seven women who are under the age of 40 report having had an abortion—with half of these women getting abortions before the age of 20. Additionally, an estimated one abortion occurs per minute, resulting in about 500,000 abortions each year. Due to such restrictions put in place, most of these abortions occur clandestinely. 

This high number of clandestine procedures puts unsafe abortions as the number one cause of maternal death in Brazil, where an estimated two in every five women who receive an unsafe abortion need hospitalization following the operation, and one in 28 pregnant individuals die from unsafe abortions. 

Additionally, abortion criminalization in Brazil is an issue wrought with deep-seated racial and socioeconomic inequities. Black women are twice as likely to risk death during a clandestine abortion, as they are 46 percent more likely to undergo an unsafe abortion than white women. Simultaneously, the issue extends to economic factors, as affluent women travel to the United States, Europe, and Argentina to receive legal abortions, with Argentina being particularly accessible as it does not require Brazilians to possess passports for entry. Furthermore, the current abortion law does not apply differently to children who are pregnant as a result of rape. Notably, an 11-year-old pregnant child from the Brazilian state Santa Catarina, who was raped at 10, did not receive an abortion until her 29th week of pregnancy after a judge prevented her from getting the procedure for weeks.

As pregnant individuals and survivors of unsafe abortions in Brazil await the public hearing finalizing this case, it is crucial that policymakers in Brazil and across Latin America apply pressure on the STF to organize a hearing immediately to vote ADPF 442 into action. With no set date in mind for the public hearing, it remains a question whether or not there is a future for reproductive justice in Brazil. Brazil must follow in the footsteps of the Marea Verde, or “Green Wave”—the recent movement of abortion decriminalization that has occurred throughout Latin America. 

Yet, it is also important that policymakers and advocates prepare for a post-ADPF 442 world if the proposal passes. This preparation is important because abortion decriminalization does not mean that hospitals and other institutions, such as churches, will necessarily accept or understand the expansion of access to abortions following the passage of ADPF 442. For example, in Bolivia, an 11-year-old girl who became pregnant as a result of rape had to wait for weeks to receive an abortion after Catholic Church officials coerced the girl and medical personnel to continue the pregnancy—even though the country allows abortion in the case of incest, rape, or when the pregnancy is life-threatening. The hospital personnel were likely misinformed about the specific grounds in which abortion is legal, which follows a trend of misinformation among hospital staff surrounding abortion laws in Bolivia. In a survey conducted, 90 percent of medical personnel in 44 public hospitals did not know the specific circumstances of when an abortion is legal. 

This situation means that it is paramount that legislators expand nationwide awareness of any new abortion laws to citizens, hospitals, and other institutions, as well as protect the rights of individuals who access abortions or advocate for them. Specifically, policymakers must emphasize the safety of medical abortions, and the connection between individual autonomy and abortions—as outlined by Weber—must be made clear. Thus, because Brazil has upheld a restrictive and near-total abortion ban for over 80 years, legislators must be prepared to inform the public on how ADPF 442 will alter pregnant individuals’ right to abortion. Consequently, medical personnel and patients will know how to respond when met with opposition from individuals or institutions to the new laws. With the retirement of Weber and President Lula’s lack of a clear stance on abortion, regional legislators within Brazil need to form a committee specifically focused on protecting the individual rights of pregnant individuals and their right to bodily autonomy. 

Furthermore, UN human rights committees, the Inter-American Court of Human Rights, and legislators in Brazil and across Latin America must open their eyes to the human rights emergency that has been affecting pregnant individuals in Brazil for years. They must provide support in expanding information regarding the safety and notion of abortion as a fundamental human right and apply pressure on the STF to proceed with this case immediately. The STF must take a look at nationwide abortion mobilizations and the many people who die, are hospitalized, or criminalized each year due to the country’s near-total ban on abortion. Accordingly, the STF must promptly issue a vote on ADPF 442 and follow the lead of other Latin American countries in riding the Green Wave to ensure the health, dignity, and autonomy of their citizens. Otherwise, the Court will continue to overlook the fatal effects that abortion criminalization has had throughout the country.

Rina Rossi

Rina Rossi (she/her) is a first-year graduate student at the Center of Latin American & Caribbean Studies (CLACS) where she is a FLAS fellow. She is a UC Berkeley alumna, where she studied Political Economy & Classics. Rina’s research interests lie in reproductive rights and gender equity in Latin America & the Caribbean. In the future, Rina plans to teach Latin American & Caribbean Studies courses while also lawyering for reproductive justice. Her writing has been published in The Nation, Kennedy School Review, Georgetown Public Policy Review, ReVista and the Latino Book Review. In her free time, Rina loves to cook, listen to jazz, dance, and watch films.