Abortion is illegal in Latin America’s most populous country, but a landmark Supreme Court decision provides cause for hope.

por Sirin Kale

Publicado originalmente em Broadly

Denying women and girls their reproductive rights under any circumstances is intolerable, but it’s especially abhorrent when you’re the most populous country in Latin America. Millions of Brazilian women suffer as a result of the country’s ban on abortion, where it is illegal except in cases of rape or where a woman’s life is in danger. Forced to turn to a network of underground abortion clinics, only wealthy women can afford the safe (but illegal) abortions they need—and those without means receive substandard medical care and can end up paying with their lives.

Now Brazil has taken an important step forward in the battle for reproductive rights. On Tuesday, Brazil’s Supreme Court ruled that abortion is not a crime when performed in the first trimester of a pregnancy. Whilst this doesn’t mean that abortion is now legal across Brazil, it is an important victory for reproductive rights advocates across the country.

The Supreme Court ruling was made in response to a case involving the employees of a clandestine abortion clinic in Rio de Janeiro. The ruling will not overturn the existing ban on abortion in the predominantly Catholic country, as under Brazilian law a single decision like this one can’t set a binding legal precedent.

However, the verdict set out by Justice Luís Roberto Barroso in his decision indicates that a sea change in Brazil’s abortion laws may, finally, be imminent. “Women bear alone the burden of pregnancy. Therefore, there will only exist gender equality if women have the right to decide whether to continue a pregnancy or not,” Justice Barroso wrote.

“Contrary to what some have claimed,” explains Professor Debora Dinez of the law Faculty at the University of Brasilia, “this latest decision does not decriminalize abortion in Brazil.” In addition to her academic work, Dinez is also the co-founder of feminist group Anis, which has campaigned to reform Brazil’s abortion laws, and an documentarian whose work highlights the impact of pregnant women in the nation. The ruling, she argues, has greater political than legal significance.

An anti-abortion protester in a crowd of people gathering to meet Pope Benedict XVI in São Paulo. Photo via Wikimedia Commons

“It is, however, a clear and strategic message by Justice Luis Roberto Cardoso that some Justices are ready to tackle the fundamental question in abortion cases, which is: Should abortion be considered a crime, given the Brazilian Constitution’s provisions on gender equality, dignity, and the right to health?”

It’s estimated that a million women a year seek abortions in Brazil. While illegal abortion clinics were once permitted to operate with relative impunity, the last decade has seen hundreds raided and shut down. However, as Brazil struggles to deal with the Zika virus, which causes birth defects in pregnant women, more voices have called for reform. Dinez says that they face a fight.

“As expected, the Christian fundamentalist caucus in the Brazilian Congress is agitating for a pushback against this new ruling,” Dinez warns. “This is nothing new— it is more of the same of what they have been doing over the last ten years.”

I ask Dinez about the practical implications of the ruling. “Women can now use the courts to argue for their rights to have a legal abortion,” she explains, “but this isn’t real at the same time. Poor women have many barriers in their access to courts, and clandestine abortion clinics will still not be able to operate freely.”

That said, the Zika virus has had one expectedly positive effect: “It’s kind of the entry point for reopening discussion related to the effects of the abortion law,” she suggests. A landmark case will come before Brazil’s Supreme Court on December 7 looking to legalize abortion in cases where the woman believes she might be infected with Zika.

“It’s hard to anticipate how the votes will go,” Dinez says. “Some of the claims might be granted right away. I expect the Court may deny the injunction on abortion, and ask for more evidence and in-depth debate on that issue.”

Meanwhile, the abortion ban continues to affect every sector of Brazil’s society. “It’s the common woman,” Dinez says. “Black and brown; Catholic or evangelical women; women with kids; young women. These laws make a huge impact on ordinary women across Brazil.”