By Suelen Tavares Gil
Suelen Tavares Gil is a Brazilian-qualified lawyer who advocates for human rights and sexual and reproductive rights through litigation and social mobilisation. She runs the Instagram page @obsdsr, providing safe information to the population regarding sexual and reproductive rights.
Introduction
Brazil, like other countries, suffered from the COVID-19 pandemic’s effects on sexual and reproductive health (SRH)1. Also, between 2018 and 2022, the Brazilian federal government was dominated by a far-right political movement that undermined advances in the subject by implementing moral and political conservatism within public policies. This article highlights some new issues regarding SRH in the country and what institutions and civil society have been doing to safeguard the population’s rights2.
Attacks on SRH
Brazil is a federation, but unlike countries such as the US, the country’s states are not completely independent. The President represents the chief from the Executive bench, which centralises the most important decisions concerning public health all over the country. This bench includes organs such as the Public Health Ministry, which plays a central role in developing public health policies and plans within the Federal Administration3.
As a Federation, Brazil has a national government system, as well as local ones, called States. There are also smaller administrative divisions called Municipalities. Those three must provide public education and health to the population, although with different competencies, according to the Brazilian Constitution4.
Also, those three public entities are parts of the Brazilian universal public health system, known as “SUS”. Also as stated by the Brazilian Federal Constitution, health is a social right (Article 6th), and a public health system must be available for all population (Article 198).
The Federal Law no. 8,080/1990, which stablished the SUS legal framework, emphasizes its decentralisation. It means delegating to municipalities to attention to the population’s primary needs, in an integrated system in which all three federative entities.
The Federal Government usually contributes to half of the public dispenses concerning public health in the country, while States and Municipalities fund the other half. The former two have executive roles, while the Federal Government has an administrative role5.
Despite its challenges, SUS has been designed to attend to all population’s needs for free through integrated approaches and combined actions such as prevention and treatments. Its capillarity and capacity to provide health services for the population turn SUS into an essential tool to guarantee SRH to all Brazilians.
However, sometimes politics may negatively interfere with these policies. In 2020, the Public Health Ministry published an administrative ruling, Portaria No 2.561, which required medical personnel and hospitals to report cases of pregnancy resulting from rape to the authorities and to collect any evidence of the violence. This indicates that in every public hospital, women who require a legal abortion would have their privacy violated. As a result, patients were discouraged from seeking medical attention. The ruling was revoked in January 20236.
In addition, in 2020, the federal government released an important technical document concerning SRH care, focusing on women’s health, and recommending the maintenance of all the specialised services during COVID-19. However, religious fundamentalists that arose in the public scene during the former Government saw the document as an apology for abortion. Therefore, the then ministry staff in charge of the document was fired7.
Since 2023, Brazil has a left-ring President. However, it does not imply the government is receptive to the feminist agenda. The Legislative bench is still conservative and unlikely to advance in sexual and reproductive rights, as concluded by a 2023 report written by the Brazilian NGO, CFMEA8.
This follows a tendency: according to a report published by Gênero & Número, a specialised journal, in 2019, 43% of legal bills concerning abortion proposed in the Brazilian Parliament aimed its restriction or total criminalization9, despite the exceptions given by the Brazilian Penal Code (in case of sexual violence and risk of death) and by the Supreme Court (in case of anencephalia). The same journal repeated the research in 2021 and found out that all of the propositions sought to limit abortion10.
Mobilisations to safeguard SRH
Considering this not-so-positive scenario, it is important to acknowledge the efforts taken by public institutions and civil society to guarantee the population’s SRH rights. Institutions such as the Public Defensor’s Offices and Public Ministry, also feminist organisations, have worked fiercely for this cause over the last few years.
As previously mentioned, during the COVID-19 pandemic, there were conservative efforts to restrict access to legal abortion within the public system. Despite that, and the public system’s overload, tele-abortion soon became an alternative. “Tele-abortion” is how abortion assisted by telemedicine has been called. Through this type of health care, the patient takes a prescribed medication and is assisted remotely by a professional. Usually, it is a safe procedure in the first weeks of pregnancy.
During the COVID-19 pandemic, teleabortion became a possible health service to women who had been sexually violated. A pioneering project called NUAVIDAS was launched in 2021 to attend women in the city of Uberlandia11.
Also in 2021, however, the Brazilian Federal Public Ministry proposed a legal action to ban tele-abortion all over the country, because, according to their interpretation, it would be illegal to assist a patient remotely in cases of abortion. Next, the Federal Public Defensor’s Office and many State Public Defensor’s Offices faced the Federal Public Ministry and intervened in the legal action to defend tele-abortion as a safe and legal procedure.
The legal action did not continue due to formal issues, as the Public Prosecutor who proposed it did not have the attributes to do so. Also, the judge confirmed that tele-abortion complied with the Health Ministry’s guidelines and would promote access to health care. Later, after a representation from Project Cravinas (Sexual and Reproductive Rights Clinics from the University of Brasilia), the Federal Public Ministry published a new technical document confirming the validity of legal abortions that are assisted remotely through digital platforms. It allowed projects such as NUAVIDAS to continue providing teleabortion.
The Public Defensor’s Offices and the Public Ministry also ensured that pregnant patients could access their right to an accompaniment during and after labour, which was granted by Federal Law No 11.108/2005. Unfortunately, several hospitals kept ignoring the rule. As an example of a successful legal claim, the Public Defensor’s Office from the State of Tocantins guaranteed the right to legal abortion to the patients in 202112.
Recently, the law has been modified owing to another Federal Law (No 14.737/2023), which guarantees an accompaniment in any medical appointment. The law was edited after a shocking case of rape committed by a doctor against a sedated patient who was sedated while undergoing a C-Section procedure. Overall, the presence of an accompaniment offers more comfort and security for the woman and tends to prevent rights violations.
Another concerning issue that arose during the pandemic was the high rate of maternal mortality. A study published by Brazilian researchers concluded that excess maternal mortality cannot be explained by pregnant women getting infected with COVID-19, but by indirect consequences of the pandemic, such as the lack of adequate prenatal, childbirth and puerperium care13.
Before the pandemic, maternal mortality was already high in Brazil14, mainly for black women. Race and racism play a significant role in violence against women in health services15. For instance, during the pandemic, maternal mortality was 62% higher in the case of Afro-Brazilian patients when compared to white patients16.
To address the problem, in 2021, sixteen Public Defensor’s Offices addressed together a petition to the Health Ministry demanding the inclusion of pregnant women in the priority group for immunisation against COVID-19 as soon as vaccines were available. Two months later, and after a recommendation from the Health Ministry, the federal government included pregnant women in the second phase of the public vaccination plan and pregnant women with precedent health conditions in the first phase.
ADPF 442
The key mobilisation toward the safeguarding of SRH taking place in Brazil orbits around the critical topic of decriminalisation of abortion17. The issue is soon to be deliberated by the Supreme Court in a legal action (ADPF 442), filed by the Partido Socialismo e Liberdade (Socialism and Liberty Party).
The political party proposed the legal action after many considerations and efforts from the ANIS Institute of Bioethics, a Brazilian non-profit organisation. Their innovative interaction between social mobilisation and the Judiciary in Brazil was reported by Alba Ruibal18. Currently, many feminist organisations are campaigning for the decriminalisation of abortion. Nem Presa Nem Morta (“Nor Arrested nor Dead)” is the main campaign happening through political incidence and communication19.
The ADPF 44220 addresses legal aspects such as the theories concerning the beginning of human life and the disproportion act of arresting a woman for practising an abortion, especially because women, as human beings, have the rights to life, privacy, health and dignity. Moreover, it approaches the public health issue, meaning that safe abortion should be provided broadly to avoid deaths.
Other institutions and groups were admitted to the legal procedure as third parties (Amicus Curiae), contributing to the democratic debate, like Rede Feminista de Saúde (Feminist Health Network), the NGO Conectas Direitos Humanos, the Brazilian Federation of Gynaecology and Obstetrics Associations (FEBRASGO) as well as several human rights clinics such as the Project Cravinas. All these were in favour of decriminalisation, but the Supreme Court also heard pro-life groups. It is common that while discussing relevant topics such as those in the ADPF 442, the Supreme Court hears from many groups before passing a judgment.
If the Supreme Court decides that abortion is no longer a crime, the immediate effect would be the release of any woman deprived of this liberty due to a conviction. However, the impact on healthcare would be even broader: it would mean access to safe abortion in the public system.
The World Health Organization recommends the full decriminalisation of abortion because its penalization causes delayed access to legal and safe abortion, and reinforces the stigma around abortion, making women less likely to look for health public services; instead, they undergo unsafe and costly procedures.
In Brazil, unsafe abortion is the fifth cause of maternal mortality. From 2010 to 2020, 723 women died due to abortion complications in the country21. The number may be even higher because there is no official database recording unsafe abortions, as another study concluded22.
Accessing legal abortion in Brazil is still difficult. According to the Brazilian study “How does the regulation of abortion provision for pregnancies resulting from rape affect its supply in the municipalities?”, about four in every five women who require an abortion often must go to another city to access the procedure because only 3,6% of Brazilian cities provide this service. Consequently, over 46% of the population’s demands are not being covered due to limitations such as long distances, lack of staff, or reluctance from public facilities and/or health professionals to provide legal abortion23.
The aforementioned study also concluded that the Brazilian health system can attend to many more patients, but health centres that can perform legal abortions are still few and concentrated in capital cities. Moreover, despite clear legal exceptions to the criminalisation, inadequate administrative rulings potentially undermine access to safe abortion24.
That conclusion reinforces than fact that, most of the time, professionals are reluctant to perform not due to religious beliefs but owing to misconceptions regarding the law. This is the conclusion of another relevant conducted by Professor Debora Diniz and other researchers25. Usually, facilities demand police reports for evidence of rape or judicial authorisation (all not necessary) or impose a limitation depending on the time of pregnancy, which is not regulated by any law.
Will the Brazilian Supreme Court decriminalise abortion?
It is still too early to say. The Court comprises ten ministers, at least three of whom have a conservative orientation. Among the less conservative ones, some believe the legislative bench should resolve this issue.
Decriminalisation is the first move towards legalisation; it means that not only should abortion not be considered a crime, but a matter of public health concern. It would imply developing proper legislation and public policies to offer this essential right to women and girls who need, in any circumstances, to perform a safe abortion.
Providing access to legal abortion comprises, at least, offering equipped facilities in key spots, such as peripherical areas, and trained multi-professional staff. Beyond, it requires a commitment to the issue as a concern of the Brazilian State, which must offer all sorts of SRH care to the population, which includes family planning, access to contraceptives comprehensive sexuality education to prevent abuses, and other actions.
While we do not know what the future will bring, we will keep working to guarantee established rights and to fight any attempts to undermine them.
References
[1] Brandão, E.; Cabral, C. Justiça reprodutiva e gênero: desafios teórico-políticos acirrados pela pandemia de Covid-19 no Brasil. Interface – Comunicação, Saúde, Educação [online]. v. 25, n. Supl. 1. Link: https://doi.org/10.1590/interface.200762.
[2] Reis Brandão E, Cabral CDS. Sexual and reproductive rights under attack: the advance of political and moral conservatism in Brazil. Sex Reprod Health Matters. 2019 May;27(2):1669338. Link: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7887911/.
[3] Public Helth Ministry Institutional webpage: https://www.gov.br/saude/pt-br/centrais-de-conteudo/publicacoes/svsa/saude-politicas-publicas.
[4] Brazilian Federal Constitucion (2022 version): https://www.stf.jus.br/arquivo/cms/legislacaoConstituicao/anexo/brazil_federal_constitution.pdf.
[5] Regarding public entities and their administrative duties in SUS: https://www.gov.br/saude/pt-br/assuntos/saude-de-a-a-z/s/sus/responsabilidades-dos-entes-que-compoem-o-sus.
[6] “Ministry of Health revokes ordinance that complicates legal abortion in the public health service”. Conectas, 01 Jan. 2023. Link: https://www.conectas.org/en/noticias/ministry-of-health-revokes-ordinance-that-complicates-legal-abortion-in-the-public-health-service/.
[7] “Brazil: Protect Sexual, Reproductive Rights in Pandemic”. Human Rights Watch, 12 June 2020. Link: https://www.hrw.org/news/2020/06/12/brazil-protect-sexual-reproductive-rights-pandemic
[8] CFEMEA. Perfil Parlamentar sob a ótica da agenda feminista (2023-2026). Brasília, 2023. Link: https://drive.google.com/file/d/12BiWImCjiNho1SI-KcgLJ1r-g0ucMczL/view.
[9] SILVA, V., Projetos de lei contrários ao aborto na Câmara dos Deputados batem recorde em 2019. Gênero & Número, 29 September 2019. Link: https://www.generonumero.media/reportagens/projetos-de-lei-contrarios-ao-aborto-na-camara-dos-deputados-batem-recorde-em-2019/.
[10] SILVA, V. Aborto legal na mira: 100% dos projetos de lei na Câmara dos Deputados em 2021 são contrários à interrupção da gravidez. Gênero & Número, 23 September 2021. Link: https://www.generonumero.media/reportagens/aborto-legal-na-mira/
[11] GALLI, B.; DILLON, J. Challenges to the implementation of telemedicine in abortion care for victims of sexual violence in Brazil. Front Glob Womens Health. 2022 Dec 7;3:902390. doi: 10.3389/fgwh.2022.902390. PMID: 36568727; PMCID: PMC9768028.
[12] OLIVEIRA, C. Justiça atende Defensoria Pública e assegura direito de acompanhante no parto. 27 August 2021. Link: https://www.defensoria.to.def.br/noticia/49340-justica-atende-defensoria-publica-e-assegura-direito-de-acompanhante-no-parto.
[13] Guimarães RM, Reis LGC, de Souza Mendes Gomes MA, Magluta C, de Freitas CM, Portela MC. Tracking excess of maternal deaths associated with COVID-19 in Brazil: a nationwide analysis. BMC Pregnancy Childbirth. 2023 Jan 12;23(1):22. Link: https://pubmed.ncbi.nlm.nih.gov/36635674/.
[14] Leal, L. F., Malta, D. C., Souza, M. de F. M., Vasconcelos, A. M. N., Teixeira, R. A., Veloso, G. A., Lansky, S., Ribeiro, A. L. P., França, G. V. A. de ., & Naghavi, M.. (2022). Maternal Mortality in Brazil, 1990 to 2019: a systematic analysis of the Global Burden of Disease Study 2019. Revista Da Sociedade Brasileira De Medicina Tropical, 55, e0279–2021. https://doi.org/10.1590/0037-8682-0279-2021.
[15] Williamson KE. The iatrogenesis of obstetric racism in Brazil: beyond the body, beyond the clinic. Anthropol Med. 2021 Jun;28(2):172-187. doi: 10.1080/13648470.2021.1932416. Epub 2021 Jun 28. PMID: 34180281.
[16] Góes, E. F., Ferreira, A. J. F., & Ramos, D.. (2023). Racismo antinegro e morte materna por COVID-19: o que vimos na Pandemia?. Ciência & Saúde Coletiva, 28(9), 2501–2510. https://doi.org/10.1590/1413-81232023289.08412022.
[17] Center for Reproductive Rights. “The Green Wave Reaches Brazil: Supreme Court to Decide on Abortion Decriminalization”. In: https://reproductiverights.org/green-wave-brazil-supreme-court/.
[18] Ruibal A. A controvérsia constitucional do aborto no Brasil: Inovação na interação entre movimento social e Supremo Tribunal Federal. Rev Direito Práx [Internet]. 2020Apr;11(2):1166–87. Link: https://www.scielo.br/j/rdp/a/bYnPL7nMpYNmzL5wBRnNVpC/?lang=pt#ModalTutors
[19] CARVALHO, Jess. “Nem Presa Nem Morta completa cinco anos de campanha pela legalização do aborto”, 13 set. 2023. In: https://catarinas.info/nem-presa-nem-morta-completa-cinco-anos-de-campanha-pela-legalizacao-do-aborto/.
[20] The petition that initiated the legal action (in Potuguese): https://redir.stf.jus.br/paginadorpub/paginador.jsp?docTP=TP&docID=626722558&prcID=5144865#.
[21]Dominguez, S; Veras, N.; Oliveira, M. Aborto inseguro afasta Brasil de meta da redução da mortalidade materna. Gênero & Número, 28 November 2022. Link: https://www.generonumero.media/reportagens/aborto-mortalidade-materna/
[22] Cardoso, B. B., Vieira, F. M. dos S. B., & Saraceni, V. (2020). Aborto no Brasil: o que dizem os dados oficiais?. Cadernos De Saúde Pública, 36. Link: https://www.scielo.br/j/csp/a/8vBCLC5xDY9yhTx5qHk5RrL/#.
[23] Jacobs MG, Boing AC. Como a normatização sobre o serviço de aborto em gravidez decorrente de estupro afeta sua oferta nos municípios?. Ciênc. saúde coletiva [Internet]. 2022Sep;27(9):3689–700. Link: https://www.scielo.br/j/csc/a/wJpc4KshhqK3mn59jTLHrQN/?lang=en#ModalHowcite.
[24 Ibidem.
[25] Debora Diniz, Alberto Madeiro & Cristião Rosas (2014) Conscientious objection, barriers, and abortion in the case of rape: a study among physicians in Brazil, Reproductive Health Matters, 22:43, 141-148. Link: https://www.tandfonline.com/doi/full/10.1016/S0968-8080%2814%2943754-6.