PSOL petition opens legal loopholes for abortion up to 9 months

ADPF 442, which can decriminalize abortion up to the 12th week of pregnancy, should be judged by the Federal Supreme Court (STF) this Friday (22). The initial petition for the action, presented by PSOL together with the Anis Institute, wants the Supreme Court not to consider the embryo as a constitutional person, but rather as an “intrauterine human creature”. In other words, a linguistic strategy to say that these human beings would not be protected by the Federal Constitution until they are born. As a consequence, they also require that the fundamental rights of unborn children be disregarded.

The second argument used by the party is that there must be consideration given to the conflict between the right to life of the fetus and the fundamental rights of women. Based on the erroneous assumption that the fetus does not have the right to life, for PSOL, women’s fundamental rights would be superior and this would allow abortion to be legal.

The term “intrauterine human creature” was used by former minister Marco Aurélio Mello during the ADPF 54 trial, on the abortion of anencephalic fetuses. By removing the status of constitutional persons from unborn children, the right to life would only apply after their birth. If accepted by the Supreme Court, the argument will provide opportunities for requests to legalize abortion up to the ninth month of pregnancy.

“This is a vocabulary trap. The moment the discussion is framed in these terms, the outcome is more or less pre-defined. Treating this issue as it is being posed is a way of escaping the political-moral character that it really has”, warns the doctor in Law from UFRGS and political scientist, Bruno Coletto.

According to the document presented by PSOL, the shorter the development of the pregnancy, the greater the women’s right to privacy would be – which explains the request to decriminalize abortion up to the 12th week of pregnancy, as it would be the end of the first trimester and phase in which the fetus is more immature.

For the jurist, the focus cannot be scientific. “Tracing this topic as a scientific discussion is a fallacy. This is not a scientific discussion, but a political and moral one regarding what law is in the Brazilian community. Bringing scientific arguments can be dangerous, as we have millions of scientists who disagree”, considers Coletto. Many abortionists do not doubt the generation of new human life from conception, but the questions they raise are in relation to the moral value and right to life of the fetus.

This idea that the acquisition of the fundamental right to life only occurs in accordance with the biological development of the human being brings other points of divergence. Along these lines, children born continue to develop biologically and are also at risk of having their right to life relativized.

For a jurist, weighing rights allows the personal opinion of the judge who judges to prevail

The second premise used by PSOL, already mentioned, is that between the fundamental rights of women and the right to life of a fetus – assuming that the fetus is no longer considered a person –, the right of women prevails, since fetuses would not have fundamental rights. In other words, in this fight, the rights to women’s dignity, freedom, health and family planning, among others, would be superior to the embryo’s right to continue its development, as it would not have the right to life, according to the perspective defended in the STF.

Coletto believes that balancing is a mistaken tool, despite being well accepted in the legal field. “This is not the best way for Law to work, because this is a way that leaves central and controversial decisions of a political community to the Judiciary, that is, that should take place in parliament”, he comments. He concludes by pointing out that the weighting ends up functioning as a kind of arbitrary tool, because, in a conflict of rights, it allows the judge of the occasion to prevail his personal opinion on which would be the most important.

In the special People’s Gazette on the right to life, published in 2018, Marcelo Azevedo, lawyer and doctor in Law from PUC-SP, explained that rights, as well as those of women, naturally encounter barriers in the rights of others. “Men and women have sexual and reproductive rights and family planning, but with responsibility. Can I kill my paraplegic grandmother with Alzheimer’s because she is disturbing my family? Family planning goes to the limit of not offending other people’s rights”, he explains.

For OAB, virtual plenary without consent of the parties violates due legal process

This week, regarding the trial of those arrested for acts of vandalism on January 8, the Federal Council of the OAB requested the STF that the sending of trials to the virtual plenary be done only with the consent of the lawyers involved in the process, as without an agreement with parties, the Court would be violating due legal process, adversarial proceedings and the right to defense.

The request states that “the in-person trial has an inestimable value in terms of prestige in guaranteeing full defense, ensuring lawyers the opportunity to carry out oral arguments in real time and, equally important, enabling the clarification of timely and relevant questions of fact ”. It is possible to apply the same arguments to other judgments such as ADPF 442.

Last Wednesday (20), entities amicus curie of ADPF 442 sent petitions to the STF requesting the suspension of the trial session for not meeting the deadlines of the Court’s rules and requesting that the STF carry out the trial in person and not virtually, as called for by the President of the Supreme Court, Minister Rosa Weber .

The document was signed jointly by the National Conference of Bishops of Brazil (CNBB), the Parliamentary Front Against Abortion and in Defense of Life, the Union of Catholic Jurists of São Paulo (UJUCASP) and the Institute for the Defense of Life and the Family (IDVF). In the same vein, the Brazilian Institute of Religion (IBDR) also presented a petition requesting the trial in person.

Furthermore, this Thursday (21), a writ of mandamus was filed with the STF to suspend the judgment of ADPF 442. The request was filed by the CNBB, IBDR, the National Association of Evangelical Jurists (Anajure) and the Parliamentary Front in Defense of Life and Against Abortion.

In the document, the entities question the change in the in-person trial process to the virtual one and the denial of the “admission of the petitioners and other entities such as amicus curiae in the records of ADPF n. 442″, one day before the start of the trial in the virtual plenary.