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

UNCLAS SECTION 01 OF 02 BRASILIA 001670 
 
SIPDIS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PGOV SOCI BR
SUBJECT: BRAZILIAN JUDGE OPENS NEW EXCEPTION TO ABORTION BAN 
 
 
¶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 
 
ABORTION BAN HAS TWO EXCEPTIONS 
------------------------------- 
¶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. 
 
CURRENT CASE - LIMITED TO ANENCEPHALICS 
--------------------------------------- 
¶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. 
 
CATHOLIC CHURCH TO APPEAL 
------------------------- 
¶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 
born." 
 
COMMENT - LAWS THAT DON'T TAKE HOLD 
----------------------------------- 
¶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 
flouted. 
DUDDY