A group of 24 Brazilian jurists and professors (see the list at the end of the article) participated in the process in which the Supreme Court of the United States decided, in June 24 to overturn the decision Roe v. Wade of 442, which prevented US states from restricting abortion. In practice, the previous understanding legalized the procedure throughout the country.
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The historic decision of the US Court did not mean a ban on abortion in the country, but the granting of autonomy for each state to regulate its legislation on the subject as it prefers. Until then, states that sought to create more restrictive abortion laws were prevented by the decision that prevailed in the highest instance of the US Justice.
Brazilians acted as amicus curiae (i.e. “friend of the court”, responsible for providing subsidies and technical support to court decisions) within a larger group of jurists from several countries, such as Germany, United States, Spain, United Kingdom, South Korea, Argentina and Chile. The group comprises former judges, civil servants, university deans and law professors.
The legal committee prepared an opinion sent to the Supreme Court, in which it defends the law of the state of Mississippi, which became the object of the process. The Court judged the constitutionality of the law, passed in the state in 2018, which prohibited abortion from 15 week of gestation, with exceptions for medical emergencies or serious fetal abnormalities. The law, therefore, went against the previous decision of the Court, of fifty years ago.
For Brazilian jurists, decision must influence other nations
The doctor in Philosophy of Law Angela Vidal Gandra Martins, who is the National Secretary for the Family at the Ministry of Women, Family and Human Rights (MMFDH), is one of the Brazilian representatives who signed the opinion used by the Supreme Court. Activist for the defense of life and professor of law, the jurist is also a member of the Union of Catholic Jurists of São Paulo (Ujucasp) – an entity that acts as amicus curiae in lawsuits related to abortion.
“This decision is a light for the world in terms of human rights. In my view, the right to life is not on the agenda. It is a constitutive right of the human being; it has to be recognized, not attributed,” says Angela. “For us it was a great victory and a reason for a lot of hope that this will be a light for several countries, including ours”, she says.
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Doctor in Law Regina Beatriz Tavares da Silva, president of the Association of Family and Succession Law (ADFAS), is another Brazilian representative who signs the document. For her, the opinion is important to show that there is a significant number of jurists around the world who are against abortion on constitutional grounds.
“We have two rights in conflict: the right to freedom of the woman and the right to life of the unborn child. However, there is no weighting for the right to life – such a right overrides in any circumstance. The argument of the right to freedom over the body to have an abortion does not correspond to the legal system of civilized countries”, says Regina. “So, what is expected is that from this new Supreme Court decision there will be an influence on the laws of the US states that, by all indications, will tighten their rules against abortion”, he highlights.
The jurist believes that the decision of the highest instance of Justice in the United States also tends to reflect similar decisions in other countries, in the sense of toughening legislation against abortion. “A decision like this taking place in a country that, as a rule, serves as an example and reference to so many other countries is very significant. This decision should have repercussions in other countries, including Brazil.”
In the Federal Supreme Court (STF), there is an ongoing lawsuit (ADPF ) filed by the Socialism and Freedom Party (PSOL), which calls for the decriminalization of abortion until 12 week of gestation. Both ADFAS, of which Regina is president, and Ujucasp, of which Angela Gandra is a member, act as amicus curiae in this action.
In addition to this, a new lawsuit related to abortion arrived at the STF last week. Four pro-abortion entities called the Supreme Court to suspend the Ministry of Health’s technical note on attention to abortion cases. Minister Edson Fachin was designated the rapporteur of the Action for Noncompliance with a Fundamental Precept (ADPF) 989 and has already asked the ministry and the Presidency of the Republic for information on the case.
International law does not recognize abortion as a human right, defend jurists
In the prepared opinion, the jurists argue that there are no conventions or treaties in international law that recognize the so-called “human right” to abortion, and that US states have the sovereign right, under international law, to protect the life of the unborn child.
“Those who seek to invent a new right to abortion err in interpreting important international instruments such as the Convention on the Elimination of Discrimination against Women, the Rome Statute and the International Conference on Population and Development. The clear language in these documents defies any attempt to redirect them to create an international human
right to abortion,” the jurists say. .
“On the other hand, provisions that recognize the unborn child as the holder of rights can be found in many international human rights instruments, including the American Convention on Human Rights, the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights”, continue the signatories.
Further on, the text highlights that, in a comparative view of abortion laws, the United States was, hitherto, out of step with most countries, ranking among the most permissive in the world. “If the Court deems it useful to consider international law in this case, it will find that there is a positive obligation to safeguard the unborn as holders of rights. Consistent with this obligation, most countries reject abortion on demand”, highlight the jurists.
See below the list of Brazilian jurists and professors who signed the opinion:
1. Glauco Barreira Magalhães Filho – Federal University of Ceará (UFC)
2. Rodrigo Otávio Bastos Silva Raposo – Federal University of Maranhão ( UFM)
3. Adriano Broleza – PUC Campinas 4. Ricardo Gaiotti Silva – Claretiano Centro Universitário
5. Angela Vidal Gandra Da Silva Martins – Universidade Mackenzie
6. Ives Gandra Da Silva Martins – CEU Law School
7. Milton Gonçalves Vasconcelos Barbosa – Federal University of Piauí (UFPI)
8. Roberto Pinheiro Campos Gouveia Filho – Catholic University of Pernambuco (Unicap)
9. Jean Marques Regina – Lutheran University of Brazil (Ulbra)
989 . Ana Luiza de Morais Rodrigues Braga – University of São Judas (USJT)
. Marcus Paulo Rycembel Boeira – Federal University of Rio Grande do Sul (UFRGS)
12. Victor Sales Pinheiro – Federal University of Pará (UFPA)
2018 . Marcel Edvar Simões – Universidade Paulista (Unip)
2018 . Elton Somensi de Oliveira – PUC Rio Grande do Sul (PUCRS)
. José Tadeu de Barros Nóbrega – Universidade Paulista (Unip)
2018 . Venceslau Tavares Costa Filho – Federal University of Pernambuco (UFPE)