Assertion of Breach of Fundamental Principle No. 54 – Federal District (ADPF 54/DF), Supreme Court of Brazil, April 12, 2012

On June 17, 2004, the National Confederation of Health Workers (Confederação Nacional dos Trabalhadores da Saúde, CNTS), a confederation of labor unions representing workers from the Brazilian health sector, filed a lawsuit for breach of a fundamental constitutional principles (arguição de descumprimento de preceito fundamental, ADPF) against the President of Brazil.

The President was a respondent for procedural purposes only, as the ADPF is aimed at protecting a broad range of citizens’ rights, and decisions in ADPF lawsuits benefit all Brazilian citizens who may be affected by or benefit from the judgment. The case aimed to protect citizens, notably pregnant women, from being threatened by judges and courts with criminal charges for seeking to interrupt pregnancies of anencephalic fetuses, meaning that parts of the brain and skull do not form during pregnancy, making it impossible to survive after birth.

CNTS sought a declaration that construing the therapeutic interruption of a pregnancy with anencephaly as a crime would be a breach of certain fundamental principles of the 1998 Brazilian Constitution, namely the right to dignity, liberty, autonomy of will, and the right to health (respectively Articles 1, VI; 5, II; 6 and 196 of the 1998 Brazilian Constitution).

In this landmark case, the Brazilian Supreme Court decided by majority vote that it is a breach of the Brazilian Constitution to construe the therapeutic interruption of pregnancy in cases of anencephaly as constituting the crime of abortion under the penal code. This decision was described by the STJ judges, including dissenting judges, as the most important decision of STJ’s history, because it ultimately redefines the constitutional reach of the concept of “life” and its protective regulation. The 433-page majority decision took nearly eight years to be issued, from June 2004 to April 2012. Thus, since 2012 the interruption of the pregnancy of an anencephalic fetus is not considered abortion in Brazi