Rosa Weber releases ADPF 442 that decriminalizes abortion for trial

The president of the Federal Supreme Court (STF), Minister Rosa Weber, decided to release ADPF 442 for trial, which aims to decriminalize abortion up to the 12th week of pregnancy, before its retirement on October 2nd. There is still no date set for the trial.

ADPF 442, authored by PSOL together with the Anis Institute, was presented to the STF in March 2017, and requests that the articles of the Penal Code that treat abortion as a crime be considered unconstitutional. According to the proposal, it would be legal to have an abortion up to 12 weeks of gestation, regardless of the circumstances.

Minister Weber decided to keep the action under her rapporteurship when she assumed the presidency of the STF, in September 2022. It is common for the president of the Court to pass on her cases to the magistrate who leaves the post, but it is possible to choose which ones will remain under her rapporteurship.

With retirement approaching, Weber has spared no effort to guide actions on issues that divide society, such as the decriminalization of drugs and the time frame for indigenous lands.

History of ADPF 442

ADPF 442 began to be processed by the STF in 2017, after pressure from PSOL and Instituto Anis. In November 2017, they presented a request for an abortion to a 30-year-old woman, mother of two children, because the pregnant woman claimed she did not have the money or emotional conditions to carry the pregnancy to term. The request ended up being denied by Rosa Weber, on the grounds that she could not decide on an ADPF based on a particular case.

The controversial topic has more than 55 “amicus curiae” petitions, entities interested in presenting a position on the topic, both among experts pro and against abortion.

In August 2018, a public hearing was held at the STF with representatives of civil society in favor of and against abortion to provide further support to the rapporteur. The idea was for the trial to be scheduled after the hearing, but since then there has been no set date.

When convening the hearing, Minister Rosa Weber mentioned that this “is one of the most sensitive and delicate legal issues, as it involves ethical, moral, religious, public health and protection of individual fundamental rights.”

Invasion of competence

The judiciary’s attempt to decriminalize abortion in Brazil is seen by jurists as an “invasion of powers” and parliamentarians criticize “judicial activism” against the unborn child. Experts also point out the risk of “unrestricted legalization of abortion in Brazil”.

Current Brazilian legislation considers abortion to be a crime in all situations, but provides for three cases in which there is no punishment for those who practice it: risk of death for the mother; pregnancy resulting from rape; or if the fetus has anencephaly. Outside of these circumstances, article 124 of the Penal Code provides for a sentence of one to six years for anyone who performs an abortion on themselves or allows others to do so. And article 126 provides for a sentence of one to four years for those who cause an abortion in a pregnant woman.