If approved, the plebiscite on abortion will depend on the TSE

Among the strategies to try to contain the STF’s judicial activism, this time in relation to ADPF 442, an action that can decriminalize abortion up to the 12th week, opposition senators filed a request for a plebiscite. If approved, the Judiciary, through the Superior Electoral Court, will command the execution of the measure. The idea is to consult the population who will say whether or not abortion should be decriminalized in the country. The proposal is questioned by jurists, as the right to life is inviolable and could not be voted on – even if the majority of the population approved the death of a human being, this would be unconstitutional.

A recent IPEC survey shows that 7 out of 10 Brazilians are against abortion. With possible disapproval from the population – which would be most likely based on IPEC research –, the public authorities would understand that the legislation on the practice should not be changed.

For a plebiscite to take place, the proposal must be approved by a third of parliamentarians in just one of the Houses, be it the Chamber of Deputies or the Federal Senate. After that, the TSE will be responsible for executing the plebiscite, which will take two years to complete, a period stipulated by the senators. The instrument has characteristics similar to elections: propaganda time for both sides, mandatory voting and electronic voting machines.

The draft legislative decree, authored by Senator Rogério Marinho (PL-RN) and other right-wing senators, foresees that Brazilians will go to the polls to answer the question “Are you in favor of legalizing abortion?”. There are doubts as to whether this would be the best way to question Brazilians, since, if the majority answered yes, it could open up the discussion even further, also considering the practice after the 12th week. Senator Rogério Marinho responded, in a note, that he believes the question should be “as simple as possible to avoid misinterpretations and misinformation”. It is worth mentioning that during its processing by the House, the rapporteur of the proposal can make any changes he deems necessary.

When asked about the two-year period for the TSE to carry out the plebiscite, senator Rogério Marinho said that “it is customary to grant a reasonable period of time to the electoral justice system to carry it out, even so that the principles of economy and efficiency are observed”. To top it off, he states that the matter is delicate and that it is up to the National Congress to legislate, not the Judiciary. “It is preferable and desirable for the Brazilian people to express their will, directing the legislative production to be carried out later by the National Congress”, he states.

Right to life cannot be relativized by the opinion of the majority

The main criticism of the plebiscite is that, regardless of popular acceptance, the right to life cannot be subject to a majority vote. It is one of the inviolable rights, guaranteed in the Constitution and in all modern democracies.

According to lawyer and master in human rights, Lília Nunes dos Santos, “even if the National Congress approves (a law that legalizes abortion), it will be killing the natural law that understands the right to life as inherent to every human being ”. She adds that it would only be up to the legislator to recognize the right to life and safeguard it.

“If the State becomes the very legitimizer of the murder of a human being and – of an innocent human being -, even through a popular decision, through a plebiscite, we will be talking about a law and an iniquitous decision that violates against the very foundations of the law”, explains Nunes.

According to Lília Nunes, “the right to life is a natural right that is inherent to the existence of each human being and, therefore, it precedes even the very existence of the State that serves to safeguard rights that even precede its existence and , also, that give reason for the very existence of the State”.

The doctor in law from UFRGS and political scientist Bruno Coletto explains that politics is an instrument used to decide moral conflicts in the community. Coletto sees the action as a response from Congress to the Supreme Court and reiterates that it is part of democracy.

In minister Rosa Weber’s vote, she states that there is a reasonable disagreement about the criminalization of abortion. “Whether the disagreement is reasonable or not, we can discuss, but that it exists is a fact”, points out Coletto.

Despite the immorality of the practice of abortion, the battle of ideas must take place in the political field – and not in the legal field – so that the law defines the rules of a pluralistic society. “What is at stake is: are we a society that respects life or not. This is a decision that the community has to make. Morality does not depend on democracy, but the functioning of law does,” he explains.

“If we recognize that the community needs to make a decision about this, the subsequent question is an institutional question: who should make that decision? And this institutional problem is at the heart of the plebiscite issue”, adds the political scientist.

For the political scientist, Brazilians have already spoken out on the topic. “Brazilian society has already spoken out about this for a long time, so much so that there is a rule about abortion that is in the Penal Code. And this topic continues to be debated in every election. No candidate with a chance of winning an election openly proposes abortion, precisely because Brazilian society is against it”, highlights Coletto. The initial petition of ADPF 442, presented by PSOL in partnership with the Anis Institute, requests the removal of articles from the Penal Code that criminalize abortion.

Last national plebiscite dealt with republic or monarchy and parliamentarism and presidentialism

Many Brazilians do not remember participating in a plebiscite. This happens because the last one that occurred in the country was in 1993. Brazilians went to the polls to express their opinion on whether they would like Brazil to be a monarchy or a republic and whether it should adopt parliamentarism instead of presidentialism. Of the total, 66.26% were in favor of the republic and 55.67% of the presidential system.

Others may confuse a plebiscite with a referendum, similar proposals. The difference between the two is that a plebiscite is a consultation prior to the creation of a new law. In the referendum, the consultation takes place after the proposal is drawn up, and the population decides concretely whether or not they want that law to come into force. The last referendum was a little more recent, in 2005, to deal with the disarmament law and 64% of Brazilians were against the ban on arms trade in the country.