STF avoids public opinion in virtual trial that should legalize abortion

With an apparent interest in “leaving a legacy” on the topic of abortion during her role as president of the STF, minister Rosa Weber guided the trial of ADPF 442, an action that deals with the decriminalization of abortion. The decision that could allow the abortion of fetuses up to the 12th week of pregnancy is scheduled to take place in a session that begins next Friday (22), and will take place in a virtual plenary session, without discussion or broadcast on TV.

>>> SPECIAL: Why abortion should not be legalized in Brazil

In virtual plenary trials, Supreme Court ministers do not meet in person, only casting written votes in the system. Voting on the online platform makes discussions and broadcasts on TV Justiça impossible and tends to minimize public demonstrations on the topic. Another issue about the online format is that the process ends up being faster.

Resolution 642 of 2019, which provides for trials in in-person and virtual sessions of the STF, points out that the only way to take the case to the in-person plenary would be through a prominent request, made by a court minister or one of the parties. The most likely to accomplish the feat would be ministers Kassio Nunes Marques and André Mendonça, appointed by former president Bolsonaro. Behind the scenes, the amici curiae anti-abortion groups, such as the CNBB and the Parliamentary Front in Defense of Life and the Family, are already looking for all the ministers for a conversation.

For Alessandro Chiarottino, professor of Constitutional Law and PhD in Law from USP, the virtual plenary limits the discussion and explanation of each side’s arguments. “In the virtual plenary, we end up having an understanding of the entire issue, which is sometimes very fragmented. In the face-to-face plenary, the way of presenting and voting is much more complete”, he reinforces.

The professor comments that the request for prominence can be seen by ministers as a veto, as it increases time and the need for a more detailed discussion. The request is not seen very favorably by colleagues, but it is also not considered an offense.

The Brazilian Institute of Law and Religion, amicus curiae of ADPF 442, presented a petition to make oral arguments and for the action to be judged in person. In a video, Thiago Rafael Vieira, president of the institute, said that “IBDR does not agree that this action be judged in a virtual environment, it is one of the most important actions of the century, which has as its object a very complex situation which is the life of the mother and the life of the child in the womb”.

Virtual sessions held last six working days, but extraordinary sessions may last even shorter. First, the rapporteur publishes the report and the vote and then the other ministers speak with four voting options. They are: follow the rapporteur, follow with reservations, differ from the rapporteur or follow the divergence.

“Given the importance of the topics discussed, I think it deserved greater deference from the ministers and should be placed in a face-to-face trial”, ponders the professor. The in-person plenary also allows the public to be present, which for Chiarottino has a positive effect. “One of the principles that was included in the Constitution is that of advertising. They could say that the virtual plenary is also public, but I would say that it is less public than the in-person plenary”, he compares.

Jurists say that the matter is up to the National Congress

Lília Nunes, lawyer and master in Human Rights, remembers that it is not up to the STF to change Brazilian legislation on criminal matters. “Legislative competence is a exclusive competence of the Brazilian parliament, especially when it comes to issues relating to criminal practices. Abortion is considered a crime in Brazil and it can only cease to be a crime or can only be legalized if there is a change in legislation”, explains Nunes.

The issue of abortion has not been ignored by Congress either. Bill 1,335/1991, which proposed the legalization of abortion by suppressing the articles of the Penal Code that deal with the subject (the same one requested by the PSOL in the ADPF 442 petition), for example, was archived in 2012 because it was rejected from the commissions he passed. The text, presented by former federal deputy Eduardo Jorge, at the time a member of the PT, had rejection opinions approved by the Social Security and Family Commission and the Justice and Citizenship Commission in 2008.

Lília Nunes comments on parliament’s actions on the topic: “Congress has been constantly acting to prevent and stop any attempt to legalize abortion in Brazil”. For her, over the years there is nothing to talk about inaction by parliament, which seeks to reject bills that attempt to decriminalize abortion.

Professor Chiarottino also believes that the matter is up to the National Congress. “I would say that it is a matter that is typically for Congress. It is possible that there will even be a movement among parliamentarians, especially in the Senate, of discontent if there is a decision by the Supreme Court”, he details.

During a STF seminar on Combating Misinformation and Defense of Democracy, Minister Luiz Fux justified the body’s latest decisions by saying that the Federal Constitution would prevent the Supreme Court from “saying I don’t judge”. Fux cited a provision in the Magna Carta that ensures that no injury or threat to rights escapes the Judiciary’s assessment.

“They could receive the action and judge saying that the STF decides that it is up to the Legislative Branch to decide on that issue. This is a judgment”, explains Chiarottino. He clarifies that although it is not possible to non liquetwhich makes it impossible for the Judiciary not to assess any issue, this does not prevent an examination that points out the power to which it belongs.

Lília Nunes clarifies that, even if there was an omission by parliament, the appropriate action to provoke the National Congress to exercise the competence to face the matter would be the direct action of unconstitutionality by omission. “It is through this action that the applicant proposes to the STF that, by analyzing the question presented, it can provoke Congress to act in situations where there are omissions or loopholes in the legislation”, concludes Nunes.