The Platform

Abortion rights rally in São Paulo. (Rovena Rosa/Agência Brasil)

It is no longer news that the U.S. Supreme Court overturned Roe v. Wade. This is possibly one of the most emblematic cases of overcoming judicial precedent, which will bring practical effects that may not yet be understood.

What many did not expect was that, about the same time in which one of the most reaffirmed precedents in American history would be overturned, a shocking episode concerning abortion would unfold in Brazil.

On June 20, The Intercept Brasil published a painful episode involving an 11-year-old girl, and the conservative stance of a judge at the Court of Justice of Rio Grande do Sul.

The Intercept Brasil reported that an 11-year-old girl, pregnant after being raped, was being prevented from having a legal abortion. Two days after discovering the pregnancy, the girl was taken to the hospital by her mother to have an abortion performed. Brazil allows abortion in case of rape without imposing any limitation and without requiring judicial authorization. The hospital, however, refused to perform the abortion.

The case became publicly known after the anonymous submission of a judicial hearing recording held with the presence, among others, of the child, her mother, a judge, and the prosecutor.

The approach to the child was considered by several Brazilian legal experts as an “aberration” since the language used towards the girl involved words such as “your baby” or “your little son.” In addition, the judge asked the child questions that her cognitive development would certainly not allow, such as whether she could wait a few more weeks for the “baby” to be sent for adoption instead of letting the “baby” die.

Still during the hearing, which should fully respect the child protection rules in the Child and Adolescent Statute (Act 13.431), other subjective and potentially inducing questions were asked. To the child, the magistrate asked if she wanted to ask for something, a birthday present. The girl denied it and then the judge asked: “Do you want to choose a name for the baby?” Other questions were asked, such as: “Do you think the baby’s father would agree with the delivery for adoption?”

Other statements followed: “Instead of letting him die because he is already a baby, he is already a child, instead of taking him out of your belly and he dies in agony, because that’s what happens…he will be born crying, and he will be in agony, we give him all the medical support for him to survive, and we give him up for adoption.”

There is no doubt that the leak of information about the case and the recording of the hearing was done clandestinely since the process was protected by judicial secrecy. Thus, there are few details about the circumstances that led to the pregnancy. Even so, what shocked the Brazilian legal community, even without access to all the information, was the attitude adopted during the hearing in front of the child, who deserves all the support from the government and must be protected from eventual revictimization.

Considering that abortions in cases resulting from rape do not depend on gestational age, the Federal Prosecution Service recommended the hospital follow the law, and the abortion was performed.

The case generated intense discussions among Brazilian legal experts for being, in addition to an aberration, a clear example of the conservative wave that threatens the implementation and progress of fundamental rights.

On June 24, the publication of the U.S. Supreme Court’s decision on the annulment of Roe v. Wade had more popular repercussions in Brazil among conservatives than the ban on performing an abortion on an 11-year-old girl.

When a court decision from another country is more celebrated than the sadness of a pregnancy resulting from rape, it is necessary to think about where this conservative wave will take humanity.

Tatiana Paula da Cruz is a PhD candidate at the University of Brasília. Tatiana holds a Master’s in Law degree from the State University of Rio de Janeiro (UERJ). Tatiana is also a Brazilian Air Force Officer. Tatiana is also a member of the Brazilian Association of Civil Procedure. Tatiana is a Visiting Scholar at the University of Wisconsin – Madison.