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Cablegate: Brazilian Judge Opens New Exception to Abortion Ban

This record is a partial extract of the original cable. The full text of the original cable is not available.




E.O. 12958: N/A

1. (SBU) SUMMARY. On July 1, a judge on the Brazilian
Supreme Federal Court issued a temporary ruling allowing
pregnant women whose fetuses suffer from anencephaly (not
having a brain) to undergo an abortion. This ruling is now
in force, but to become permanent it must be approved by the
full Court. Brazil is the world's largest Catholic country,
and Church leaders have criticized the ruling and are
studying ways to challenge it. The decision creates only the
third legal exception to Brazil's abortion ban (threat to the
life of the mother and pregnancy resulting from rape being
the others). Despite being illegal, abortion is common here
and one study reported that 31% of Brazilian pregnancies end
in abortion. Thus the most likely long-term outcome of the
debate is that the abortion ban will remain largely in place
--with certain exceptions-- and will continue to be widely
flouted. END SUMMARY

2. (U) The Brazilian penal code, dating to 1940, bans
abortion as a crime punishable by up to three years'
imprisonment for the health provider and the mother. There
are two exceptions: when the pregnancy results from rape or
in order to save the mother's life. Prosecutions are rare
and international organizations estimate there are from 1.4
to 3 million illegal abortions per year in Brazil. A 1996
report estimated that 31% of Brazilian pregnancies end in
abortion and that the majority of women seeking abortions are
married. While the law specifies no such exception, since
1991 individual Brazilian judges have authorized an estimated
350 abortions in cases of anencephaly. None of these rulings
has been challenged to the high court.

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3. (U) In the current case, the National Confederation of
Health Workers (CNTS -an association of a million physicians
and nurses) filed the petition with the high court in order
to obtain greater legal security when treating anencephalic
cases. CNTS's petition pointed out that because anencephalic
fetuses are not viable outside the womb, the procedure would
not be abortion but rather "anticipating the birth". In his
ruling, Supreme Court Judge Marco Aurelio de Mello agreed,
noting that forcing a woman to carry a fetus that could not
survive imposed undue psychological harm and medical risk,
violating her constitutional rights to dignity, choice and
health. His temporary ruling applies to all anencephaly
cases nationwide until the full court can hear the case when
it returns from recess in August. The decision also suspends
any ongoing charges against health workers for previous
abortions of anencephalics.

4. (SBU) On a parallel track, Senator Duciomar Costa
(PTB-Para) has drafted a bill that would specifically make
anencephaly the third exception to the abortion ban. That
bill is in the Senate's Justice Committee but may not become
law for several months, if ever. Costa told us that he
drafted the law a few months ago to protect health workers
from oppressive prosecutions, but that he is personally
opposed to abortion on religious grounds. He has no plans to
expand the proposed exception from the narrow case of
anencephalic fetuses to a broader exception for unviable
fetuses regardless of medical condition. The Senator seemed
surprised by the vociferous opposition of the Catholic
Church, and said that he will consult with Church leaders and
may "rethink the bill or withdraw it altogether".

5. (SBU) Deborah Diniz, Director of the ANIS bioethics NGO in
Brasilia, filed an amicus brief on CNTS's behalf. Like
Senator Costa, she told us she is focused narrowly on
anencephalic cases and has no plans to expand the legal
exception to include other medical conditions. She is not
aware of any prosecutions of health workers specifically in
anencephalic cases. Diniz believes the Supreme Court
petition offers a better and quicker resolution of the issue
than waiting for legislation to pass Congress.

6. (U) The Brazilian Catholic Bishops' Conference (CNBB)
opposes the ruling. CNBB Vice President, dom Pedro Scherer,
told the press, "This ruling is lamentable, an assault on the
lives of anencephalic fetuses... There is the risk that,
little by little, other similar and analogous situations will
be seen as permissible for abortion". CNBB President dom
Geraldo Majella has contacted the federal Prosecutor-General
requesting that he challenge the ruling and also issued a
statement saying, "CNBB will exert every effort to invalidate
this isolated decision and will struggle for the preservation
of the rights of anencephalics, especially the right to be

7. (SBU) While Brazilians tend to be open-minded, this is the
world's largest Catholic country, and the Church not only
opposes the ruling, but sees it as potentially the tip of the
iceberg in terms of creating more exceptions for a range of
medical conditions. But another Supreme Court Justice, Celso
de Mello, praised Judge Marco Aurelio's ruling, saying, "The
magistrate who imposes absolute religious neutrality to the
Brazilian State, cannot subordinate his decisions to
principles of moral theology, no matter how worthy." In the
long run, both views are likely to win out. Brazilians point
out that their books are full of laws that "don't take hold"
("nao pega"), and the abortion ban is one example. The most
likely outcome is that, whether or not the entire Supreme
Court upholds the ruling, that Brazil's abortion ban will
remain largely in place and will continue to be widely

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