The question of the week is whether the Supreme Federal Court (STF) is within its jurisdiction to decriminalize abortion. I don’t want to give spoilers, but the answer is yes. The Supreme Court is the guardian of the Constitution, and it has the essential role of reviewing laws to determine whether they align with the Constitution.
Brazil is a democracy in which the three branches of government should work to expand individual freedoms. This means that the Supreme Court, even in a counter-majoritarian way, is responsible for constantly ensuring that current laws comply with constitutional parameters.
From a formal perspective, the Brazilian Penal Code is a decree-law written at the height of the Vargas dictatorship in 1940. Although it was accepted by the 1988 Constitution, the code is not only a product of Vargas’ authoritarianism but also broadly anti-liberal. Therefore, from a jurisdictional point of view, there is no doubt that the STF has the duty to continuously review the constitutionality of laws. After all, Brazilian democracy hasn’t even reached middle age. It is clear that its pre-constitutional laws need to be reviewed.
Regarding the criminalization of abortion instituted during the Vargas dictatorship, it is certain that Brazilian criminal law is beyond outdated. The secular nature of the Brazilian state is nothing new. Therefore, it is up to Brazilian women—based on their religion or not—to decide whether to continue a pregnancy. However, even under the current legal protection for abortion, women still face bureaucratic hurdles that are comparable to torture.
In 2020, a 10-year-old girl—after four years of sexual abuse by her own uncle—faced the most humiliating national exposure. Even as a child, raped and living with a high-risk pregnancy, meeting all the current requirements, that girl did not receive even the minimal state protection for her identity.
In 2022, when actress Klara Castanho (then 21 years old) was raped and decided to give the baby up for adoption, she also became a victim of national scrutiny. In fact, there is no right answer for women who become pregnant after sexual violence. Whether they choose to terminate the pregnancy or give the baby up for adoption, women always end up making the “wrong” decision in the eyes of society.
The issue of abortion is moral, intimate, and deeply personal. There is no scientific or religious consensus on when human life begins. Regardless of our personal beliefs, pregnant women should have the right to control their own destinies and be the ones to make the final decision on this matter.
It is evident that the life of the already-formed woman takes precedence over the “potential life” of a fetus or embryo. This opinion is not only mine but also that of the philosopher Ayn Rand. According to her, anyone who did not understand and accept women’s right to choose had little or no understanding of individual rights. After all, pregnancy naturally puts a woman’s life at risk, and no one should be forced to face that risk against their will.
In Brazil in 2023, a woman does not need a husband, father, or brother to fully enjoy her civil liberties. Thus, when exercising sexual freedom, there is consequently the risk of an unwanted pregnancy, and contrary to popular belief, even the most responsible woman with her contraceptive methods can become pregnant.
It is important to note that the main democracies and economies in Latin America, with social bases as or more Christian-Catholic than Brazil’s, already recognize this civil liberty for their citizens, including Uruguay, Argentina, Colombia, Chile, and Mexico.
In the U.S., even with the revocation of the Supreme Court decision that guaranteed the right to abortion nationally, in 20 states (plus the capital, Washington, and Puerto Rico), there are no restrictions, even in the later stages of pregnancy. Additionally, states like Florida—governed by Republican and anti-abortion Ron DeSantis—recently decriminalized abortion under any circumstances up to the sixth week of pregnancy. In other words, it is much more progressive than the current Brazilian legislation on the subject.
Moreover, those who watched the Republican Party primaries in September 2023 could see that even among American conservatives, the debate on the legality of abortion revolves around the gestational period. There was a certain consensus that banning abortion in the early stages was not only impractical but also a serious violation of women’s individual rights.
Therefore, from a formal standpoint, it is not only within the STF’s jurisdiction but also the duty of every branch of the Brazilian government to work to expand the freedoms of its citizens—regardless of third parties’ religious beliefs. The criminalization of abortion—a product of Getúlio Vargas’ dictatorial era—can no longer prevail in democratic Brazil.