MercoPress. South Atlantic News Agency

Brazil's STF adjourns vote on decriminalizing abortion until face-to-face plenum

Chief Justice Weber will be retiring next week

Brazil's Supreme Federal Court (STF) decided in a virtual gathering Friday to pass judgment on the decriminalization of abortion up to the 12th week of pregnancy during an on-site plenary session at a date yet to be determined, Agência Brasil reported.

The motion to adjourn the online meeting and wait for a face-to-face gathering was submitted Friday by Justice Luís Roberto Barroso, who will chair the country's top court as of next week.

The abortion case in question was filed in 2017 by the PSOL party, which argues that termination of pregnancy up to the 12th week should no longer be a crime and insists that criminalization affects the dignity of the human person, mainly of black and poor women.

Currently, Brazilian legislation allows abortion in cases of rape, life risk to the pregnant woman, or anencephalic fetuses.

The case rapporteur is Chief Justice Rosa Weber, who will turn 75 next week and must thus retire compulsorily. She will be replaced by Barroso on Thursday (28). In her submission Friday, Weber voted through the Court's electronic system in favor of decriminalizing abortion up to the 12th week. She held that articles 124 and 126 of the 1940 Penal Code, which criminalized abortion, were not accepted by the 1988 Constitution.

“The dignity of the human person, personal self-determination, freedom, intimacy, reproductive rights, and equality as recognition, after seven decades, are imposed as normative parameters for controlling the constitutional validity of the state's criminal response,” Weber said. In her view, criminalization excludes “women as autonomous subjects” due to the lack of acceptance of abortion for moral reasons.

“The state cannot judge that a woman has failed to act on her freedom and the construction of her personal ethos just because her decision does not converge with the orientation presumably accepted as correct by the state or society, from the perspective of a morality,” the magistrate concluded.

In a separate ruling, the STF voted Thursday 9–2 in favor of indigenous land rights. The new decision supersedes jurisprudence whereby indigenous people only had the right to land that was in their possession by Oct. 5, 1988 (the date of the promulgation of the current Constitution) or to territories in legal dispute at the time.

In her vote, Weber argued that the Constitution guarantees that lands traditionally occupied by indigenous peoples are permanently inhabited and part of their cultural heritage, and there is no need to limit them to a time frame.

“I dismiss the time frame thesis, following the entirety of [rapporteur] Justice [Edson] Fachin’s vote, reaffirming that the jurisdiction of the Inter-American Court of Human Rights points to traditional possession as a factor in recognizing indigenous people’s right to their lands,” she wrote. In addition to Weber and Fachin, also making up the majority of the votes were Justices Alexandre De Moraes, Luís Roberto Barroso, Cristiano Zanin, Dias Toffoli, Luiz Fux, and Gilmar Mendes. Nunes Marques and André Mendonça were in favor of the time frame.

On Wednesday (27), the next sitting on the matter, the justices will define other aspects of the issue. Among the points to be debated is the possibility of compensation to private individuals who acquired land “in good faith.” According to the understanding, compensation for improvements and raw land would apply to owners who received titles from the government for land that should be considered indigenous.

The case that prompted the discussion concerns the dispute over ownership of the Ibirama indigenous territory, in Santa Catarina state. The area is inhabited by the Xokleng, Kaingang, and Guarani, and the possession of a portion of the land is being challenged by the state’s Prosecutor-General’s Office.

(Source: Agencia Brasil)