The National Conference of Bishops of Brazil (CNBB) asked the Federal Supreme Court (STF) to nullify the votes of former ministers Rosa Weber and Luís Roberto Barroso in the action on the decriminalization of abortion in the Court. Both Weber and Barroso voted in favor of the decriminalization of abortion shortly before their retirement, as a last act of commitment to the cause as judges.
The trial of the Claim of Non-Compliance with Fundamental Precepts (ADPF) 442 aims to decide whether or not the voluntary termination of pregnancy in the first 12 weeks of pregnancy can be considered a crime.
Legislation today allows abortion in only three situations: sexual violence, risk of death for the pregnant woman or fetus with anencephaly. “Women are free and equal beings, endowed with autonomy, with self-determination to make their existential choices”, wrote the minister on his last day as minister, on October 17th.
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The CNBB alleges procedural defects in the conduct of the action which, according to the organization, “violate due legal process, the principle of natural justice, broad defense and contradictory proceedings, suppressing the right to speak out of the parties, the Attorney General’s Office and the more than 70 (seventy) qualified amici curiae”.
The conference claims that the deadline for sending oral arguments ended on the same day that the ADPF’s inclusion in the virtual trial list was announced. And that Weber entered his vote into the system in a virtual session that had already been closed due to the highlight requested by Barroso, who took the trial to the physical plenary.
It also argues that the virtual session called by President Edson Fachin last month, so that Barroso could cast his last vote as a judge, started 45 minutes after the call.
“The parties, the PGR (Attorney General’s Office) and the amici curiae were again prevented from exercising their rights, such as presenting oral arguments”, says the CNBB document, which also criticizes the urgent request for that extraordinary session.
“Equally, there was no, and never has been, urgency to justify a non-rapporteur minister to withdraw a prominent request, without a regulatory provision, and equally without a regulatory provision to request inclusion in an extraordinary session, for the simple fact that he will retire. Interestingly, these were the only ADPFs in which the minister quickly cast a vote and decided, in the face of hundreds, perhaps thousands of decisions that he left pending with his VOLUNTARY retirement”, says the CNBB.
Barroso’s vote upset religious sectors of society. The Brazilian Institute of Law and Religion (IBDR) had already sent, on October 21, a request for Fachin to annul the now former minister’s participation in the trial. The institute says that Barroso’s vote should be disregarded for violating due legal process.
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The entity claims that the conduct of the process was irregular, as the case should have been distributed by lottery and not forwarded to a magistrate who had already spoken publicly on the issue under trial.
The institute also stated that it recognized Barroso’s “unquestionable suitability”, but criticized the fact that he “delivered his vote hours before his retirement, with the clear intention of preventing a new minister, who will have to serve as a judiciary at the Court for many years, from voting on an issue of this magnitude”.
‘If men got pregnant, abortion would no longer be treated as a crime’
In his vote, the minister sought to frame the issue from an essentially legal perspective, with emphasis on women’s sexual and reproductive rights, but noted respect for religious doctrines that oppose the procedure.
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“Fundamental rights cannot depend on the will of political majorities. Let no one doubt it: if men got pregnant, abortion would no longer be treated as a crime a long time ago”, he declared in his vote.
Barroso made the reservation that he is not in favor of abortion itself, but rather against the imprisonment of women who undergo the procedure: “It is perfectly possible to be simultaneously against abortion and against criminalization”.
The minister also defended that abortion be treated as a public health issue, not a criminal law issue. And he argued that criminalization does not reduce the number of occurrences, which in his opinion makes the rule inefficient. “Criminalization is a public policy that does not achieve the objective of reducing the number of occurrences. The appropriate way to deal with the issue is to make abortion rare, but safe”, he stated. “Criminalization penalizes, above all, poor girls and women who cannot use the public health system to obtain information, medication or adequate procedures.”
