Library of Congress

Law Library of Congress

The Library of Congress > Law Library > News & Events > Global Legal Monitor

Brazil: Court Says Abortion Not a Crime Before End of the Third Month of Gestation

(Dec. 5, 2016) A decision on a Habeas Corpus case issued by the majority of Ministers of the first panel (1a Turma) of the Brazilian Federal Supreme Court (Supremo Tribunal Federal, STF) on November 29, 2016, ordered the release of physicians and clerks who had been arrested, in a clandestine clinic, for the alleged practice of the crime of abortion with the consent of the pregnant woman and for the crime of formation of a gang. (Código Penal, arts. 126 & 128, Decreto-Lei No. 2.848, de 7 de Dezembro de 1940, PLANALTO; HC 124.306 Rio de Janeiro, STF website.) The basis for the decision was the Court’s view that the criminalization of abortion before the end of the first trimester of pregnancy violates a number of women’s fundamental rights and does not sufficiently observe the principle of proportionality. (1ª Turma Afasta Prisão Preventiva de Acusados da Prática de Aborto, NOTÍCIAS STF (Nov. 29, 2016).)

Minister Luís Roberto Barroso, who wrote the opinion, stated that in addition to the fact that the requirements authorizing pre-trial detention (prisão cautelar) were not present in the case, the criminalization of abortion is incompatible with several fundamental rights, including sexual and reproductive rights and women’s autonomy, the physical and mental integrity of the pregnant woman, and the principle of equality. (Id.)

As the Penal Code was promulgated in 1940 and thus predates the 1988 Constitution, and the jurisprudence of the STF does not allow for the declaration of unconstitutionality of any law adopted prior to the Constitution, Barroso stated that the relevant provision of the Code was “not accepted by” the Constitution (não recepção). ”As a consequence, due to the non-incidence of the type of crime imputed to the plaintiffs (the voluntary interruption of gestation carried out in the first three months), there is doubt about the very existence of the crime, which removes the presence of the prerequisite offense indispensable for pre-trial detention,” he concluded. (Id.; Constituição da República Federativa do Brasil de 1988 (as amended to 2016), PLANALTO.)