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 002774 
 
SIPDIS 
 
DEPT FOR WHA/BSC 
 
E.O. 12958: N/A 
TAGS: PGOV SOCI PHUM BR
SUBJECT: BRAZILIAN HIGH COURT STRIKES DOWN EXCEPTION TO 
ABORTION BAN 
 
REF: BRASILIA 1670 
 
¶1. SUMMARY.  On October 20, after a stormy debate, Brazil's 
Supreme Federal Tribunal struck down a temporary injunction 
issued in July that created a narrow exception (only the 
third) in Brazil's abortion ban.  The exception would allow 
abortions in cases of anencephaly (where the fetus has no 
brain).  Threat to the life of the mother and pregnancy 
resulting from rape are the two existing exceptions. 
Anencephaly is linked to maternal nutritional deficiencies 
and has a 100% mortality rate within minutes of birth.  Last 
July, when a judge issued the injunction it sparked a heated 
public debate from medical, legal, religious, and human 
rights officials.  The case is not over: this ruling only 
strikes down the injunction on technical grounds but does not 
decide the underlying case.  The high court must now decide 
whether it will hear arguments on the merits or leave the 
issue to legislators --who have shown little interest in 
being drawn into the debate.  END SUMMARY. 
 
HIGH COURT STRIKES DOWN INJUNCTION 
---------------------------------- 
¶2.  On 1 July 2004, a judge on Brazil's Supreme Federal 
Tribunal (STF), Marco Aurelio Mello, issued a temporary 
injunction that allowed anencephaly cases (where the fetus 
has no brain) to become only the third exception to Brazil's 
ban on abortion (reftel).  Threat to the life of the mother 
and pregnancy resulting from rape are the two existing 
exceptions.  That injunction remained in force until October 
20 when, after tempestuous debate, the full Court struck it 
down by a 7-4 vote.  Mello and Judge Joaquim Barbosa nearly 
came to blows during the arguments.  The case is not over: 
the full court decision struck down the injunction on 
technical grounds but did not decide the merits of the 
underlying case. 
 
¶3.  Anencephaly is linked to maternal nutritional 
deficiencies and has a 100% mortality rate within minutes of 
birth.  Thus, when Judge Mello issued the injunction in July, 
he kicked off a broad public debate over abortion rights with 
jurists, health providers, women's rights activists, and 
religious leaders lined up on both sides of the issue.  After 
the ruling, one attorney who argued in support of the 
injunction noted that the Catholic Church "inundated the 
judges' computers with e-mails".  On November 7, speaking in 
Rome to a group of Brazilian pilgrims, the Pope said, "I hope 
that in every moment (Brazilian) officials continue defending 
life from conception until its natural end".  According to a 
World Health Organization study Brazil has the world's fourth 
highest anencephaly rate (8.6 per 10,000 births).  In a 
survey conducted in Sao Paulo a week before the high court 
decision, 67% of respondents supported the right to terminate 
an anencephalic pregnancy. 
 
¶4.  The only woman on the high court, Judge Ellen Gracie, 
voted with the majority in striking down the injunction, but 
noted that she did so on a legal technicality and was not 
issuing an opinion on the underlying issue.  If the merits of 
the case come before the court, she is seen as likely to 
support establishing anencephaly as a third exception to the 
abortion ban.  Judge Gracie has noted that the abortion ban 
--like most of Brazil's criminal law-- was codified by the 
1940 Penal Code, whereas the Constitution was written much 
later, in 1988, after the end of the military dictatorship. 
Thus, there remain issues on which the law and the 
constitution need to be harmonized.  In addition to Gracie, 
three other judges (including Chief Justice Nelson Jobim) who 
voted to strike down the injunction are seen as possibles to 
vote in favor of a third exception to the abortion ban.  If 
they all change their vote, the anencephaly exception would 
be legalized by an 8-3 majority.  However, the high court may 
also refuse to hear arguments on the merits, thus leaving the 
current ban in place and leaving further action to Congress. 
The Court's decision on whether to hear the case is expected 
before year's end. 
 
¶5.  There are currently 24 abortion-related bills in various 
stages of inactivity in the Chamber of Deputies (lower 
house), but only two deal with cases of fetus inviability or 
malformation.  One of these was drafted in 1996 by the 
current Mayor of Sao Paulo, Marta Suplicy.  None of the bills 
have any particular momentum at this time.  Another bill, in 
the Senate, which would have narrowly legalized abortion only 
in cases of anencephaly was recently withdrawn by its author, 
Senator Duciomar Costa (PTB-PA), under pressure from the 
Catholic Church. 
 
COMMENT - LAWS THAT "DON'T TAKE HOLD" 
------------------------------------- 
¶6.  Since 1989, judges have authorized abortions in hundreds 
of anencephaly cases (on a case-by-case basis) and at least 
ten more were conducted in the wake of the July 1 injunction. 
 Brazil's books are full of laws that "don't take hold" ("nao 
pega"), and the abortion ban is one.  Studies in the late 
1990s showed that as many as 31% of Brazilian pregnancies end 
in abortion and that the majority of abortion patients are 
married women who can afford private health plans.  Poorer 
women, more likely to have anencephalic fetuses, are also 
more likely to utilize public health care where the ban on 
abortions is more strictly observed.  Thus, whether or not 
the practice violates the letter of the law, abortions are 
likely to continue to be accessible to many Brazilian women. 
DANILOVICH