Mind you its google translate... April 12, 2012
The ministers of the STF (Supreme Court) decided on Thursday (12) by an absolute majority, eight votes to two, the abortion of anencephalic fetuses (with malformation of the brain) can not be considered a crime. The decision came after two days of trial, since the process began to be analyzed in the last quarter (11).
The only two ministers who voted against women's freedom of choice in this type of pregnancy were the ministers Ricardo Lewandowski and Cezar Peluso, who despite representing the minority, said that this was the most important judgment of the Supreme Court.
- I want to join so effusive to the Minister Celso de Mello that this is the most important trial in the history of this Court.
Lewandowski, who was also against abortion, argued that the current legislation is clear and does not allow other interpretations. Moreover, he justified his vote by saying that it still represents a deadlock also in Congress, where there are bills on the same subject that are stopped.
- If desired, the National Congress, to interpret the last will of the people, could have changed the legislation to include the abortion of anencephalic fetus. [The issue] came to Parliament [..] are two bills [in Congress] and reveal the complexity of the issue [...] both find themselves in process, so Congress is addressing the issue.
Still, from the vote of Justice Carlos Ayres Britto, the seventh to speak, had a majority and could know what the outcome of the proceedings in the Supreme. After him, the score stayed the trial on 6 votes to 1 in favor of non-criminalization of abortion of anencephalic fetus.
As there were only three ministers to vote, the result will only change if the ministers who had already decided to vote or changed if the judges were asked to review the waiting time process. That did not happen. Only Cezar Peluso accompanied Mr Ricardo Lewandowski against abortion.
The trial
The trial began last Wednesday. The first to vote was the rapporteur of the case, Justice Marco Aurelio Mello. He noted that Brazil is a secular state and that "religious ideas can not guide state decisions, should be circumscribed to the private sphere."
- The State is not religious nor atheist. The state is simply neutral. The right is not subject to religion. [...] At stake are privacy, autonomy and dignity of these women. They must be respected both who choose to continue the pregnancy as those who prefer to terminate the pregnancy to end or minimize a state of suffering. You can not ask the woman what the state will not provide through medical maneuvers.
Mello noted that pregnancy represents a "high risk" for the woman and, ultimately, the decision should be hers.
- It is not to impose on women a sense of mere incubator, or rather walking coffins.
Then it was time for Rose Weber. She understood that the anticipation of the interruption or termination of pregnancy should not be considered a crime since anencephaly "is not compatible with the ideals of life." The minister also justified the vote saying that, when the pregnancy of an anencephalic fetus, should be directed to the decision in favor of freedom of choice of women.
- Vote for the merits of the action, except for inconsistent interpretation mean that termination of pregnancy as a crime. Not in game [this trial] directly from the fetus but the mother and that their own choices prevail.
After the vote of the Minister, the Minister Joaquim Barbosa also took the floor and anticipated his vote be in favor of declaring the termination of pregnancy in the situation analyzed.
Then came the vote of Luiz Fux Carmen and Lucia. Fux argued that the issue of abortion, especially in the case of fetal malformation of the brain, is a public health issue.
- The penal provisions should be used as a last drag. [The question of abortion] is public health that afflicts mostly women and should be treated as social assistance policy, not a criminal matter.
Following the Minister Carmen Lucia, praised the explanation of his colleagues. She said only that, even in the case of abortion, women who go through a gestation of anencephalic fetus also suffer.
- The interruption is not easy choice, it is always tragic. Even in the interruption, the choice is the least pain. It is precisely to preserve the dignity of life. So I think in this case the interrupt is not criminalizável.
The score was 5-0 when the Supreme registered the first vote against abortion, made by Justice Ricardo Lewandowski. After him, the Chief stopped the trial resumed on Thursday.
Minister Ayres Britto was the first to vote after the resumption of the trial. He advocated the decriminalization of abortion in cases of anencephaly and was justified by saying that if men got pregnant, this issue has already been overcome.
- If men got pregnant, termination of anencephalic pregnancy was always permitted.
Following came the Minister Gilmar Mendes. He also accompanied the rapporteur Marco Aurelio Mello and voted for the release of abortion in these cases. For him, the interruption of pregnancy of an anencephalic is implicitly permitted since 1940.
