In a rare court challenge to its abortion ban, Brazil grapples with its own version of Roe vs. Wade

Thousands of Brazilians protest against a bill that aims to cut the right to abortion in Rio de Janeiro.

By Jill Langlois

Dec. 8, 2017 11:55 AM PT

Reporting from SÃO PAULO, Brazil — Debate over abortion is nothing new in Latin America, where laws banning the procedure have driven millions of women to do it themselves or have it performed clandestinely.

But for five days last month, the controversy had a face in Brazil: Rebeca Mendes Silva Leite, the first woman in this staunchly Christian nation to fight for her own abortion in court.

Six weeks pregnant, the 30-year-old law student didn’t want another child. She already had two small boys, and support from their father barely covered the rent. If she were forced to take time off from school, she would lose her scholarship and have to drop out.

She soon found the #EuVouContar (I Will Tell) blog — part of a campaign by a women’s rights organization to let Brazilians anonymously share their stories of having illegal abortions. That led her to lawyers who hatched a novel legal strategy.

They helped Mendes file a lawsuit against the government demanding permission for an abortion and — given the urgency of her predicament — use a provision of Brazilian law to take her case directly to the Supreme Court.

Brazil, like most countries across the continent, bans abortion in cases where a pregnancy is simply unwanted. The law, which dates back to 1940, makes exceptions for rapes, when a pregnancy threatens the life of the mother or when a fetus has a brain defect known as anencephaly.

Mendes’ lawsuit argued that criminalizing abortion violates fundamental principles of freedom, health and dignity guaranteed by the Constitution.

Her lawyers understood the case was a long shot. But they also knew the power a sympathetic client before the Supreme Court could have in drawing attention to the cause.

Given the stigma of abortion in Brazil, it was difficult to find pregnant women willing to fight public battles. More practically, the slow pace of the courts meant that any suit was likely to be resolved too late to have an abortion — and make it harder for the woman to resort to an illegal abortion.

Mendes, the lawyers said, was the first woman in Brazil to fight for her own abortion in court.

The case, filed Nov. 23, brought instant publicity.

“Roe vs. Wade arrives in Brazil,” said one headline.

“Abortion: Why not put the child up for adoption?” said another.

The majority of people in Brazil say they oppose abortion. A 2014 Pew Research Center survey found that 77% of Brazilians thought that abortion should be illegal in “all or most cases,” while 20% supported legalization.

At the same time, illegal abortions are surprisingly common in Brazil, with one survey last year finding that 1 in 5 women will have had at least one before the age of 40. The study estimated that in 2015, 416,000 abortions were performed in the country, most of them illegal and generally for minority women with lower levels of education.

Mendes aimed her message as much at the public as she did at the court.

In a letter to the judge overseeing her case— which she read in a video for the feminist group Think Olga — she said her situation was the story of many women in Brazil.

“If it’s already difficult for a woman with small children to work in our country, it is impossible for a pregnant woman to be hired for any type of job,” she read. “We will be three people without our basic needs met, not being able to pay rent and without money to buy food. And with all of this difficulty I will have another baby on the way.”

That intensified the social media storm.

“I very much support abortion as long as the murderer dies with the baby,” wrote one commenter.

“Be strong! I’m one of many who hopes reason speaks louder than machismo and that a decision is made in your favor,” said another.

“Rebeca, you don’t have to abort this child,” wrote somebody else. “If you can’t raise it, I have more than enough economic conditions to raise it, and I bet many others do too. Some have already offered to keep the child if you don’t want it, including myself.”

And then the suit ended nearly as quickly as it began.

Five days after the case was filed, Supreme Court Justice Rosa Weber ruled that Mendes’ legal argument — known as “breach of basic precept” — was irrelevant, as it only applies to larger, more abstract cases, and not to decisions about individuals.

Mendes’ lawyer Debora Diniz said she worried that the ruling, which was widely celebrated online, would have a chilling effect on other women going public for the cause.

“With the decision the court made today, Rebeca might be the only one,” she said. “I doubt anyone else will want to take this chance again.”

If there is going to be a change in Brazil’s abortion laws anytime soon, they are likely to become stricter, not looser. In early November, a special committee in Congress voted 18-1 in favor of a constitutional amendment that states that life begins at conception and could criminalize all abortions, even in cases of rape. The one vote against the amendment was from the lone woman on the committee.

The bill still has to be put through a more in-depth analysis before moving on to another vote.

Mendes had more immediate concerns after her loss in court.

The next day, she filed a motion to prevent authorities from arresting her if she were to perform her own abortion. The most common method is a widely available ulcer medication known as misoprostol, which can induce labor and abortion up to 12 weeks into a pregnancy.

As of this week, the court had not made a decision. Diniz declined to say whether Mendes would have an abortion if the court rules against her, or if she has already had one.

Langlois is a special correspondent.