The standard was published by the Federal Council of Medicine (CFM) in early AprilReproduction/Agência Brasil
Published 04/27/2024 18:53
In a decision published late in the afternoon of Friday, 26th, the Federal Regional Court of the 4th Region overturned the injunction that had suspended the effects of a resolution by the Federal Council of Medicine (CFM) that prohibits a procedure used in cases of legal abortion of pregnancies resulting from rape after 22 weeks.
The standard, published at the beginning of April, determines that, from this gestational age onwards, professionals are prevented from carrying out so-called fetal asystole, which consists of injecting a substance that causes the death of the fetus so that it is later removed from the uterus. of the woman.
The procedure is supported by the World Health Organization (WHO) from 20 weeks of pregnancy. Shortly after the publication of the resolution, experts criticized the rule, claiming that it goes against current legislation in the country and will make access to legal abortion difficult, especially for girls and women in situations of greater vulnerability.
In reaction, the Federal Public Ministry (MPF), the Brazilian Society of Bioethics (SBB) and the Brazilian Center for Health Studies (Cebes) appealed to the Court to suspend the measure because they understood that the resolution created “undue restrictions on access to healthcare ” by rape victims who become pregnant.
On the 18th, the Federal Court in Rio Grande do Sul granted an injunction (provisional decision) that suspended the effects of the resolution. Federal judge Paula Weber Rosito, from the 4th Court of Federal Justice of RS, who signed the injunction, stated that the Federal Council of Medicine, as an agency, does not have the authority to create restrictions on abortion in cases of rape.
CFM appealed and, this Friday, managed to overturn the injunction. In his decision, judge Cândido Alfredo Silva Leal Junior claims that the issue should be better debated and says that the topic is already the subject of other legal actions that have not yet had an outcome.
He highlighted two Actions for Non-compliance with Fundamental Precepts (ADPF 989/2022 and ADPF 1,134/2024) that are pending in court. The first, prior to the norm, questions a recommendation issued by the Ministry of Health during the Jair Bolsonaro government in 2022, which also advised against performing fetal asystole after 22 weeks. The other action questions the CFM resolution itself.
The document from the previous administration of the ministry questioned in one of the ADPFs was prepared by the then secretary of Primary Care of the ministry during the Bolsonaro administration, the gynecologist Raphael Câmara Medeiros Parente, who is now an advisor to the CFM and was the rapporteur of the medical entity’s resolution.
“In this context, it does not seem opportune to me that, on a preliminary basis, and without further elements, the court of origin suspends the effects of the resolution of the Federal Council of Medicine that deals with an issue that: a) will have a national impact; b) is – still which under another guise – submitted to judgment by the STF; and c) and requires a broader and more in-depth debate”, argues the judge.
“What we are now trying to avoid is that, through a singular decision with effectiveness and coverage throughout the national territory, the suspension of a rule that is related to a matter under discussion in ADPF, and in relation to which the STF did not grant a precautionary measure to suspend the effects of the questioned act”, continues Leal Junior, in his decision.
The federal judge also stated in the decision that the resolution may be questioned and analyzed case by case in the higher courts of Justice.
“If individual situations are preserved (in which interested parties may take the issue to the Judiciary and obtain specific judicial protection appropriate to the specific case), and if there is regulation by the competent technical body (Medical Council), it does not seem prudent to suspend the technical standard on a broad and general through the injunction granted in this public civil action, it seems opportune that the issue is better debated always with the possibility that specific cases have specific and individualized treatment”, wrote the judge.
Regulations on legal abortion have already had other controversies
In Brazil, abortion is permitted when there is a risk to the mother’s life, in cases of rape and pregnancy with an anencephalic fetus. There is no gestational age limit for termination of pregnancy in the cases provided for by law. Entities that defend women’s right to legal abortion argue that younger and more vulnerable children and women are those most in need of interruption care after 20 weeks because it takes longer for them to gain access to health services.
In February this year, the Ministry of Health published a technical note clarifying that there is no gestational age limit for legal abortion. The document, however, was the target of criticism from conservative parliamentarians and ended up suspended the following day by the Minister of Health, Nísia Trindade.
In the first month of the Lula government, the ministry announced the repeal of a ministry ordinance that hindered the right of women victims of rape to abortion. The rule instituted by the Bolsonaro government forced health professionals to report cases of sexual violence that led to the termination of pregnancy to the police, even without the woman’s approval. At the time, experts on the subject criticized the Bolsonarist administration’s rule because they understood that the guidance could embarrass victims and make them avoid seeking the right to abortion.
