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Negative Impacts of Abortion Criminalization in Brazil: Systematic Denial of Women’S Reproductive Autonomy and Human Rights

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Negative Impacts of Abortion Criminalization in Brazil: Systematic Denial of Women’S Reproductive Autonomy and Human Rights \\jciprod01\productn\M\MIA\65-3\MIA303.txt unknown Seq: 1 27-MAY-11 15:12 Negative Impacts of Abortion Criminalization in Brazil: Systematic Denial of Women’s Reproductive Autonomy and Human Rights BEATRIZ GALLI* INTRODUCTION The magnitude of unsafe abortion in Brazil is a result of the coun- try’s restrictive abortion laws. Research shows a direct relation between legal restrictions on abortion and high rates of unsafe abortion.1 In Bra- zil, abortion law is very restrictive despite existing progressive policies and legislation on sexual and reproductive rights. According to the 1940 Penal Code, abortion is permitted only in cases of rape or to save the life of a pregnant woman. The current trend to intensify discriminatory application of abortion criminal law by public security and judicial state authorities has been detrimental to a woman’s full enjoyment of her right to health and rights related to reproductive self-determination, such as the rights to privacy, liberty and security of the person, equality, and freedom from discrimination in health care. This article will focus on the negative effects of abortion criminal- ization and how it affects women’s reproductive rights through an analy- sis of three key aspects: the major impact of unsafe abortion mortality and morbidity on public health; the lack of women’s access to safe and legal abortion care in cases permitted by law; and the role of the judicial system in prosecuting women, therefore increasing abortion stigma as well as violating basic human rights principles and norms. This article aims to explore the discriminatory effects of abortion law in Brazil using the case of Mato Grosso do Sul as an example. I. BACKGROUND ON RELIGIOUS INFLUENCE IN THE REGION In a region where the Catholic Church has always held hegemonic power on morality over sexuality and reproduction, feminist and sexual diversity movements have fought to include sexual and reproductive * The author received her LL.M. degree from the University of Toronto, where she was a fellow in the International Program for Sexual Health and Reproductive Rights from 2001 to 2002. She is a Policy Associate for Ipas Brasil, a member of the Latin American and Caribbean Committee for Defense of Women’s Rights (CLADEM) in Brazil, and a member of the Bio Ethics and Bio Law Committee of the Rio de Janeiro Bar Association. 1. Rachel Jewkes et al., Prevalence of Morbidity Associated with Abortion Before and After Legalisation in South Africa, 324 BRIT. MED. J. 1252 (2002). 969 \\jciprod01\productn\M\MIA\65-3\MIA303.txt unknown Seq: 2 27-MAY-11 15:12 970 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 65:969 rights in public agendas. As a result, recently, new anti-choice actors and more sophisticated conservative discourses have emerged to protect traditional values.2 Religious leaders from different traditions, political elites, and civil organizations have emerged defending dogmatic relig- ious interpretations using scientific research and apparent lay arguments to justify new societal demands in defense of traditional and religious values.3 The expansion of the legal and political recognition of sexual and reproductive rights in the region, however, is a trend to be noted despite the increasing opposition sustained on conservative and religious voices against women’s reproductive health autonomy. This regional political landscape has implications in domestic polit- ical dynamics in Brazil and vice versa. In 2010, moral discourse about women’s sexual and reproductive rights dominated the presidential cam- paigns and the electoral debate.4 The growing opposition in Brazil’s Congress is measured by the number of pending anti-choice bills deny- ing women’s sexual and reproductive autonomy: for example, measures to establish embryo rights in detriment of a woman’s right to health as well as to establish mandatory registration of a pregnant woman in the early stage of pregnancy.5 II. BRAZIL AS A CASE IN POINT A. Unsafe Abortion: A Major Public-Health Concern One previous study in twenty-six Brazilian state capitals came up with the rate of 74 deaths per 100,000 live births in 2004, revealing the difficulty in determining the level of maternal mortality in Brazil.6 Stud- ies have shown, moreover, that there was no decline in maternal mortal- ity rates between 1996 and 2006.7 Unsafe abortion is one of the leading 2. Gillian Kane, Abortion Law Reform in Latin America: Lessons for Advocacy, 16 GENDER & DEV. 361 (2008) (U.K.), available at http://www.genderanddevelopment.org/display.asp?K= 002J1316&sf1=volume&st1=16&sort=sort_date/d&m=18&dc=29. 3. The international women’s rights organization Association for Women’s Rights in Development released a report “based on interviews with more than 1,600 activists worldwide . includ[ing] 240 women’s rights activists from Latin America whose experiences provide a unique mapping of the fundamentalist phenomenon in this region.” Juan Marco Vaggione, Fundamentalist Strategy: The Secular and the Religious, HIVOS, http://www.hivos.nl/eng/Hivos- Knowledge-Programme/Themes/Promoting-Pluralism/News/Fundamentalist-strategy-the-secular- and-the-religious (last visited Apr. 1, 2011). 4. Karen Keller, Abortion Becomes Issue in Brazil’s Presidential Runoff, AOLNEWS, (Oct. 8, 2010, 6:16 AM), http://www.aolnews.com/2010/10/08/abortion-becomes-an-issue-in-brazils- presidential-runoff/. 5. Beatriz Galli, Celebrating Important Victories from the Women’s Movement in Brazil, RH REALITY CHECK (Jan. 19, 2011, 9:21 AM), http://www.rhrealitycheck.org/blog/beatriz-galli. 6. MINISTERIO´ DA SAUDE´ , ATENC ¸ AO˜ HUMANIZADA AO ABORTAMENTO 8 (2005), available at http://www.ipas.org.br/arquivos /NT_atencao_humanizada.pdf. 7. COMISSAO˜ DE CIDADANIA E REPRODUC ¸ AO˜ ET AL., MORTALIDADE MATERNA E DIREITOS \\jciprod01\productn\M\MIA\65-3\MIA303.txt unknown Seq: 3 27-MAY-11 15:12 2011] NEGATIVE IMPACTS OF ABORTION CRIMINALIZATION 971 causes of maternal mortality in Brazil; it is among the top five women’s causes of death related to pregnancy.8 The most likely to die or suffer from complications due to unsafe abortions in Brazil are low-income women of African descent with mini- mal education and limited access to family-planning services.9 A 2008 report revealed that all maternal mortalities that occurred as a result of unsafe abortions in the cities of Recife and Petrolina could have been prevented had safe abortion care been available.10 Maternal deaths related to unsafe abortions are still occurring. For example, in 2009, five women died as a consequence of unsafe abortions in the state of Per- nambuco, according to information provided by the Maternal Mortality State Committee. In Bahia, Salvador, where the majority of the popula- tion is of African descent, unsafe abortions have been the leading cause of maternal mortality for decades.11 Approximately 220,000 women are treated annually in Brazilian hospitals for complications arising from unsafe abortions.12 In Brazil, maternal morbidity and mortality risks vary according to geographic region, racial and ethnic groups, and socio-economic situation.13 For example, the south and southeastern regions of the country present better quality health care and also maintain better statistical records to monitor that care.14 In 2009, the U.N. Committee on Economic, Social and Cultural Rights expressed its concerns to Brazil, stating “that maternal mortality HUMANOS NO BRASIL (2009), available at http://www.ccr.org.br/uploads/noticias/semin´ario% 20mortalidade%20materna.pdf. 8. MINISTERIO´ DA SAUDE´ , MANUAL DOS COMITESˆ DE MORTALIDADE MATERNA (2007), available at http://bvsms.saude.gov.br/bvs/publicacoes/comites_mortalidade_materna_3ed.pdf. 9. COMISSAO˜ PARLAMENTAR DE INQUERITO´ , RELATORIO´ DA DEPUTADA ELCIONE BARBALHO SOBRE A SITUAC ¸ AO˜ DA MORTALIDADE MATERNA NO BRASIL (2001), available at http://www. portalmedico.org.br/biblioteca_virtual/cpi/CPIMortalidade_Matern.htm. 10. BEATRIZ GALLI ET AL., DOSSIEˆ SOBRE A REALIDADE DO ABORTO INSEGURO EM PERNAMBUCO: O IMPACTO DA ILEGALIDADE DO ABORTAMENTO NA SAUDE´ DAS MULHERES E NOS SERVICOS ¸ DE SAUDE´ DE RECIFE E PETROLINA (2008), available at http://www.ipas.org.br/arquivos/ dados/PE_dossie.pdf. 11. CECILIA SIMONETTI ET AL., DOSSIEˆ SOBRE A REALIDADE DO ABORTO INSEGURO NA BAHIA: A ILEGALIDADE DA PRATICA E SEUS EFEITOS NA SAUDE´ DAS MULHERES EM SALVADOR E FEIRA DE SANTANA (2008), available at http://www.ipas.org.br/arquivos/dados/BA_dossie.pdf. 12. MINISTERIO DA SAUDE, RELATORIO´ DE GESTAO˜ 2003 A` 2006: POLITICA´ NACIONAL DE ATENC ¸ AO˜ INTEGRAL A` SAUDE´ DA MULHER (2007), available at http://bvsms.saude.gov.br/bvs/ publicacoes/relatorio_2003a2006_politica_saude_mulher.pdf. 13. Maria Beatriz Galli, A Human Rights Approach to Maternal Mortality in Brazil (2002) (unpublished LL.M. thesis, University of Toronto) (on file with University of Toronto); see also MARIA BEATRIZ GALLI ET AL., ADVOCACI, MORTALIDADE MATERNA E DIREITOS HUMANOS 14 (2005), available at http://www.ipas.org.br/arquivos/ Livro_Mortalidade_Materna_site.pdf. 14. Sandra Valongueiro Alves, Maternal Mortality in Pernambuco, Brazil: What Has Changed in Ten Years?, 15 REPROD. HEALTH MATTERS, Nov. 2007, at 134, 134–35 (U.K.), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1107794. \\jciprod01\productn\M\MIA\65-3\MIA303.txt unknown Seq: 4 27-MAY-11 15:12 972 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 65:969 rates remain extremely high and that the risk of maternal death dispro- portionately affects marginalized communities, particularly Afro- Brazilians, indigenous
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