decriminalizing abortion

The matter of decriminalizing abortion is intimately connected to the social and political bases which cannot be separated. The first base which this discussion must be yoked on is that we live in a secular State. The second is of values, for most noble and fundamental, which a community of believers or politics, cannot, in any hypothesis impose itself on the nation, but only to those who, voluntarily adhere to its beliefs and determinations.

Decriminalizing, in criminal law, consist in considering atypical an act which occurs in society. Now, it is impossible that, without a big dose of dishonesty and hypocrisy, one would not comprehend that decriminalizing abortion does not mean its liberation, even less stimulate it. Decriminalizing is not turning it legal; just atypical, from the legal point of view, being able to still be typical, immoral, indecent or whatever you want in a moral, ethical or even faith or political way.

Adultery has left being a crime, but for the vast majority of Christians, religious of any faith and a big parcel of the jurisprudence, it continues to suffer some moral repression, more hypocrite that effective, but still legit on its continuity of its ways of thinking

For we to comprehend the decriminalization of abortion, we first have to understand a concept in two aspects. The first one is more ample, which consists in removing the juridical sphere the act of stopping voluntarily pregnancy, letting it exclusively on the health department and the conscious of the woman, inside her own reproductive rights, which we understand as decriminalization.

The second one, more restrict, aims only a legal provision prohibiting application of the penalty, when the interruption was made by the pregnant woman, according to her will, keeping the act itself, however, as illegal or crime. That would be the decriminalization, keeping a moral sanction of the act.

However, when we mistake voluntary interruption of pregnancy with abortion, we provoke a moral and religious sanction that imposes itself on a dishonest way to the whole population. The defense of a woman’s right to keep or not her pregnancy only fits her, since she is in the field of difficult and painful decisions that a woman, and only her, can take regarding the act of maternity for herself and her community. How can we, men, discuss the rights of someone giving birth, when we ourselves are unable to understand the relationship of the mother and her unborn child, and later the mother-child relationship?

The present concept of abortion in Brazil, is built on articles nº124 to 127 of the actual criminal code, one of the many inheritances from dictatorial and paternalist periods of our political evolution.

The current concept of abortion is that of the interruption of pregnancy before it ends. In this aspect, the vote of Minister Cezar Peluzo, in which we disagree in thesis, is perfect when denouncing that there isn’t, effectively, any reason, ethical or juridical, that justifies the Superior Federal Court of allowing the abortion of anencephalic fetuses. His vote is not in favor of the permanence of the criminalization and suffering of thousands of Brazilian mothers; it is to denounce the hypocrisy prevailing in the Brazilian Congress, that refuses to comply with his duty of changing the law to accompany the development of the Brazilian society and, more that that, make effective the separation of Church and the State, which dates more that 123 years, in which we talked about the catholic stand, the evangelic stand; now, on the congress there can only be partisan stands, representing the conductive forces of the Brazilian society. A Church that seeks to elect representatives to affirm its values to the whole society, is no longer a Church, but a society of gangsters or a reactionary political party, where should stop being recognized as a Church, but as a political and social movement with all its implications.

If we tolerate the moral abortion, when the pregnancy is result of rape, or the sanitary abortion, when the pregnancy brings severe risks to the woman, we understand that the physical and psychological health of the woman are on its unalterable rights, protected by the Letter of 1988, mainly in its 5^th article.

It is important to reinforce that we are not here to defend abortion, even less promoting it, and to comprehend the position that we defend it is important to visit Ronald Dworkin’s work, Life’s Dominion– Abortion, euthanasia and individual freedom, where we brilliantly expresses:

I would love to convince these people (advocates of criminalizing abortion) if they are willing to listen to me, that they misunderstood the basis of their own convictions. Or, anyway, that there is acompelling focus of moral controversy that would allow them to continue to believe with full conviction that abortion is morally wrong, but also to believe with equal fervor, that pregnant women should be free to take a different decision if their own beliefs so permit or require. This is the highest ambition of this book. [1]

Comprehend pregnancy as another woman’s right, and defend it as a possible choice, makes it incomprehensible the application of any sentence to the voluntary pregnancy interruption.

If, even in a hypocritical way, we comprehend the sentence as a measure that seek necessarily the protection of juridical goods, universally understood as inalienable and a reintegration of the agent in society, when we apply a penalty to a mother who voluntarily stopped her pregnancy, we create two absurd situations: the first, the value to the fetal life, for her, isn’t the same that we consider universal. Even more so, only she can dimension the life she carries inside herself, being incomprehensible this value to other humans; second, the penalty in the case of abortion will not reintegrate her into society, it stigmatizes her, devalues her and makes her guilty of something brutal, which impacts her psychologically, morally and socially, being a disservice to society.

A dispassionate and attentive look at abortion as a social problem in Brazil denounces the current situation, which is absolutely unsustainable, where the justification for the penalization for the voluntary interruption of the pregnancy lies only with the confusion between the State and the Church, and by the abject and vile cowardice of our parliamentary, who fail to fulfill their duties, of giving the Brazilian nation a legislation for all, and not only for the fundamentalists on duty!

[1] DWORKIN, Ronald. Life’s Dominion – Abortion, euthanasia and individual freedom. São Paulo, Martins Fontes, 2003. Fl. IX. – tradução livre.

Version by: Pedro Henrique Carvalho da Costa