(Apr. 19, 2012) On April 12, 2012, the Brazilian Federal Supreme Court (Supremo Tribunal Federal, or STF), by a majority vote, ruled unconstitutional the interpretation of articles 124, 126, and 128(I)(II) of the Penal Code (Decreto-Lei No. 2.848, de 7 de Dezembro de 1940) that considers abortion of anencephalic babies a crime based on the said articles. Anencephalic babies are those in which a major portion of the brain is absent. (STF Garante a Gestantes de Anencéfalos Direito de Interromper Gravidez (Apr. 12, 2012), STF website.)
The decision was issued in reference to a case brought to the Court in 2004 through an “allegation of disobedience of a fundamental precept” (Arguição de Descumprimento de Preceito Fundamental – ADPF No. 54 (June 16, 2004), STF website) by the National Confederation of Health Workers (Confederação Nacional dos Trabalhadores na Saúde). This decision sustained, inter alia, that abortion was a crime against life, but that in the case of anencephalic babies it would not be a crime because there is no viable human life in formation to be protected. (STF Garante a Gestantes de Anencéfalos Direito de Interromper Gravidez, supra.)
Article 124 of the Penal Code criminalizes abortion practiced by a pregnant woman or with her consent and is punished with detention for one to three years. Article 126 punishes with one to four years' imprisonment anyone convicted of performing an abortion with the consent of the pregnant woman.
The Penal Code does not punish a physician who performs an abortion if there is no other way to save the pregnant woman's life (art. 128(I)) or when the pregnancy has been the result of rape and the pregnant woman, or her legal representative if she is incapacitated, consents to the procedure (art. 128(II)).
Allegation of Disobedience of a Fundamental Precept Under Article 102 § 1 of the Constitution
Pursuant to article 102, section 1, of the Constitution, an allegation of disobedience of a fundamental precept stemming from the Constitution must be heard by the STF, as provided by law. On December 3, 1999, Law No. 9,882 was enacted to regulate this additional form of control of the constitutionality of government acts. (Lei No. 9.882, de 3 de Dezembro de 1999, PLANALTO.GOV.BR.)
According to article 1 of Law No. 9,882, the purpose of an allegation of disobedience of a fundamental precept, which must be filed with the STF, is to prevent or redress damage to a fundamental precept resulting from an act of the government. Such an allegation is also applicable when the basis of the constitutional controversy is relevant to federal, state, or municipal law or a normative act, including the ones enacted prior to the adoption of the Constitution (art. 1(I) (sole para.)). Allegations of disobedience of a fundamental precept may be filed by the same persons and entities that can bring direct actions of unconstitutionality (art. 2(I)).