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The judge saw formal and material unconstitutionality in the rule, and stated that, in a state of fragility, which is that of a woman who seeks an abortion for the reasons provided for by law (rape, anencephaly or risk to life), it would be up to the State to support it - and not impose obligations.

 

In 33 pages,  recorded the need for women's rights and the right to health to be guaranteed, as well as for the analysis of the topic to be carried out from a gender perspective - as recommended by the CNJ.

 

In the cases of those who suffered sexual violence, the judge exemplified, "the municipality ends up acting as an agent of revictimization", practicing "second and true institutional violence".

 

"Under the mistaken pretext of clarifying and guiding, municipal law commits and reinforces violence against women. Instead of being accepted, as imperative to the principle of human dignity and the right to health, no matter how good the legislative intention may have been , ends that, in truth, resurrects a blame perpetrated against these women who chose to interrupt their intrauterine life, as a result of a painful and unexpected circumstance."

 

The judge highlighted that " women must be treated as authentic subjects of rights, and not as objects of political or ideological interests ."

 

 

 

"Legal abortion" has faced obstacles across the country

 

The action

 

The direct action of state unconstitutionality was filed by the Public Defender's Office of Alagoas against the law, and reported, in short, that the legal text obliges women seeking legal abortion in the municipal health network to see, in detail, with images, the development of the fetus week by week, in addition to watching videos of the surgery carrying out the procedure.  

 

The Defender's Office claimed that the municipality does not have the competence to legislate on the subject, and also violates the State Constitution by disrespecting the provision that ensures the dignity of the human person through the preservation of inviolable rights, such as the right to health.

 

Unconstitutional conditions

 

In deciding, the judge highlighted that the normative diploma questioned, in addition to creating expenses for municipal health establishments, establishes several conditions for the woman to have a legal abortion - " which, as we know, is legally permitted in the event of a high-risk pregnancy to the life of the pregnant woman (art. 128, item I, CP), pregnancy resulting from rape (art. 128, item II, CP) and fetal anencephaly (ADPF 54) ".

 

For him, the lack of local interest in the matter is evident, nor is there a specific factual situation, which is why the legislation represents a fraud on the system of division of powers.

 

But that's not all: for him, the law also incurs a material defect. He highlighted that the fundamental guarantee of health is a right for everyone and a duty of the State.

 

Gender perspective

 

The judge pointed out that the validity of the norm must be assessed from a gender perspective, as recommended by the CNJ, and that the municipal law "completely disregards the fragile and vulnerable situation in which a woman who is about to have an abortion finds herself. "

 

"A woman does not choose to be raped, she does not choose to risk her life during her pregnancy and she does not choose to have a fetus with anencephaly. All of these situations are extreme, and quite painful, and it is therefore mandatory for the State, in the broadest sense, to creation and implementation of public policies designed to alleviate and protect them from this suffering and its undeniable consequences."

 

For the judge, from the moment the State forces these women, especially minors, to watch videos of the procedure and be warned about absolutely all possible risks, psychological and emotional suffering increases, violating their fundamental right the health.

 

He understood, therefore, that the unconstitutionality of the law remains evident, and noted that the records of the City Council's attorney's office and the city's Attorney General's office express their opinion on its unconstitutionality.

 

He therefore granted the injunction, to determine the immediate suspension of the effects of the law.

 

The judge ordered the OAB and the Regional Psychology Council to be summoned so that, if they wish, they could act as amicus curiae in the case.

 

Urgency

 

Due to the urgency of the matter, the judge determined that the matter be taken to the next plenary agenda, at the table, for consideration by the collegiate body.

 

Process :  0800234-78.2024.8.02.0000