Rule on abortion could change in the US and impact debate in Brazil. Understand
Discussion of abortion rights in the US, in which Roe v. Wade walks to be reversed, could guide discussion in the rest of the world, say organizations
Almost 50 years ago, when the United States decided on jurisprudence guaranteeing the right to abortion in the country, the movement ended up generating a chain of debate on the topic around the world. Starting in the 1970s, a number of countries would also authorize abortion as a right for women in early pregnancy, from Canada to Western European countries.
Now, half a century later, the reverse debate has taken hold in American politics, with the Supreme Court moving to reverse the so-called Roe v. Wade of 1973, which declared the right to abortion to be constitutional. A Senate vote this week also ended the proposal to convert Roe v. Wade in law rejected.
The tendency is that the change of status in the US, as occurred in the 1970s, will have repercussions on laws in other parts of the world that already have laws pro-choice for women or that are thinking about passing them.
The debate may also spill over in Brazil in the midst of this year’s elections, although abortion is not, so far, a main issue of interest to voters, focused on economics, according to the latest EXAME/IDEIA polls.
But the issue also divides opinions in the country, with a majority of the population against it. In the last EXAME/IDEIA poll in April, 55% of Brazilians were against the decriminalization of abortion, 38% in favor and 7% were unable to respond.
Support for decriminalization, however, is majority among the richest, above 60% in classes A and B. (The survey was registered with the Superior Electoral Court under the number BR-02495/2022 – click here to read the full report .)
Brazil has one of the most restrictive legislation on abortion in the world to date.
Performing an abortion can earn women a sentence of one to up to three years in prison, under a framework that generally dates back to the 1940 Penal Code.
The procedure is only allowed in three cases: rape, pregnancy that poses a risk to the woman’s life and, as decided by the Federal Supreme Court (STF) in 2012, in cases of anencephaly, when there is malformation of the fetal brain. Most Brazilians said they were in favor of keeping the rule as it is.
Abortion also gained prominence in the electoral debate in Brazil after a declaration by former President Lula, who said that the issue should be treated as a public health issue.
Even with the classification as a crime in Brazil, it is estimated that more than 500 thousand clandestine abortions are performed in the country per year. One in five women, by age 40, will have had an abortion, according to the National Abortion Survey, coordinated by researcher Debora Diniz, one of the most comprehensive studies carried out in Brazil in the area, amid the few official data on the subject.
US can guide debate in the world
Amnesty International released a statement saying the move in the US could “set a terrible example that other governments and anti-rights groups around the world could take advantage of in an attempt to deny the rights of women, girls and others who may get pregnant,” according to the organization’s secretary general, Agnes Callamard.
The possible restriction on the abortion paradigm in the US comes as countries with religious majorities – previously restrictive to abortion – have approved changes in the opposite direction.
In Latin America, which has one of the most restrictive legislation on abortion and a majority of the Catholic population, Uruguay (2012), Argentina (2020), Colombia (2022) and parts of Mexico (2022) have recently changed their rules. Countries like Chile are also studying changes.
Ireland, one of the last countries in Europe where abortion had not been decriminalized, also changed the law in 2019.
On the other hand, one of the clear examples of possible US influence cited by international experts is Poland, which recently passed laws banning almost all abortion options, a change from its previous legal framework.
The change has drawn widespread criticism from other European Union countries, where abortion is also allowed to depend on women’s choice. But the Polish government could argue, for example, that if the US – a first-rate ally of the Europeans – changed the law, Poland can also do it without being criticized.
In the US, meanwhile, massive protests have erupted in recent weeks since a draft made clear the Supreme Court majority to reverse Roe v. Wade, a topic that should reach the vote among the judges later this year.
The Supreme Court has 6 justices classified as conservative and 3 as liberal or progressive. The expectation of groups defending Roe vs. Wade is to pressure judges not to reverse case law, which, for now, seems unlikely.
What is Roe vs. Wade in the US?
In the 1970s, many American states made abortion a criminal offense under criminal law. The Roe case vs.. Wade got his start in one such state, Texas, after a lawsuit filed by a single mother, Jane Roe (a pseudonym of Norma McCorvey).
Roe was pregnant for the third time in 1969, and attacked the constitutionality of Texas law. The woman ended up filing an appeal against Dallas prosecutor Henry Wade, and the case made its way to the Supreme Court.
The Court would vote three years later, in 1973. The judges at the time voted 7-2 in favor of Jane Roe’s case.
With the decision, the anti-abortion law in Texas and a number of other states that, at the time, treated abortion as a crime, fell apart.
The judges’ understanding at the time was that the US Constitution protects a woman’s right to decide, without undue state intervention, whether to carry out a newly discovered pregnancy. The exception would be for advanced stages of pregnancy, when the woman’s right to privacy would not be absolute, according to the Court’s understanding.
Since then, based on the 1973 jurisprudence that classifies the right to abortion as constitutional, states cannot pass laws that are contrary to this understanding.
The Roe vs.. Wade came at a specific time, when liberal thinking expanded, both economically and politically, and opposed broad government control in the midst of the Cold War.
The reading of a liberal state expanded to mores, with the view that the right to respect for private life, guaranteed by the US Constitution, applied to a woman’s right to decide whether or not to have a child – if the decision was to be taken early in pregnancy.
The Court thus decreed that “the right to respect for private life, contained in the 14th Amendment to the Constitution (…), is broad enough to apply to a woman’s decision to terminate her pregnancy or not”.
Despite the 1973 decision, in recent months a number of states have passed more restrictive abortion rights laws.
Thus, the Supreme Court will have to decide whether these local laws restricting access to abortion at the beginning of the administration are constitutional, which, in practice, will maintain or overturn the jurisprudence of the Roe. vs.. Wade.
If the 1970s decision is reversed, each state will be able to decide whether or not to restrict abortion. The trend is for progressive states to follow with comprehensive legislation, while conservative states change laws to ban or even criminalize mothers who perform the procedure in more cases.
The issue has become a center of polarization among politicians in the US, with Republicans in favor of reversing Roe v. Wade and most of the Opposite Democrats.
US President Joe Biden also spoke about the situation. The incumbent, who is Catholic, said “basic justice” requires that Roe v. Wade be kept.
On the other hand, reversing jurisprudence is an old demand of more conservative sections of the population. Alongside the so-called “pro-choice” protests, anti-abortion activists have also taken to the streets in recent weeks.