The right to abortion: pathways in Brazil – an interview with Margareth Arilha

Correspondence C. S. Cabral Faculdade de Saúde Pública, Universidade de São Paulo. Av. Dr. Arnaldo 715, São Paulo, SP 01246-904, Brasil. cabralcs@gmail.com Margareth Arilha is a psychologist who graduated from São Paulo University (USP – 1975-1979), with a Master’s in Social Psychology (São Paulo Catholic University – PUC/SP) and PhD in Public Health (School of Public Health, São Paulo University – FSP/USP). She is a researcher at Center for Populations Studies Elza Berquó, University of Campinas (NEPO/ UNICAMP), psychanalyst, feminist, and advocate of sexual rights and reproductive rights. Her professional career has been marked by Brazil’s re-democratization and the struggle for women’s rights. Margareth was interviewed in December 2018 at the FSP/USP, one of the key institutions in her career. In this interview, Margareth revisits the struggle for the right to abortion in Brazil, which involves personal, historical, and political dimensions. ENTREVISTA INTERVIEW

Margareth I have a reasonable theory. The feminists had returned from exile, and there was something boiling over there, in parallel with the new Brazilian state that was opening up and pushing to build public policies. And it was all happening at the same time. But abortion was a crime. In the 1980s, here in São Paulo we established the first Council on Women's Condition, and I soon began to coordinate the health area. The health group was organized at the time, which included Elza Berquó and Ruth Cardoso, so we already had demography and anthropology on board. Ruth proposed "to discuss abortion", and a working group was set up. I remember asking, "How are we going to discuss abortion? How can we do it?". Ruth taught us an important lesson, saying, "When the problem is too big, we split it up and work on it by pieces, so we start with what we already have, abortion that is already allowed by law." The Commission for Studies on Human Reproductive Rights was set up in the Ministry of Health, and I was named to participate in it. We created a working group on abortion and developed a strategy to address legal abortion as a right. We needed a good criminal lawyer for this strategy, and a document was produced, based on the input from attorney José Carlos Dias. This work was crucial in the city of São Paulo, where the mayor was Luiza Erundina at the time, with Eduardo Jorge as Municipal Health Secretary and Maria José Araújo as coordinator of the technical area on women's health. The first legal abortion service was set up in 1989 at the Jabaquara Hospital, with Jorge Andalaft as the staff coordinator and Cristião Rosas and Osmar Colas as collaborating physicians.
Cad. Saúde Pública 2020; 36 Sup 1:e00118319 ethics in relation to one's body. In her second marriage, she had an abortion and was hospitalized due to complications in a Catholic hospital, where she felt a lot of pressure from the nuns, who wanted her to say who had performed the abortion. She said, "I'll die if necessary, but I won't tell, because the decision for the abortion was mine, and I'm not going to denounce the people that tried to help me". This was very striking, with a big impact on me, both because of her decision -a young married women who decides to have an abortion -and the ethical dimension, plus the pressure by the Church. She had experienced an abortion in terrible conditions in Brazil, too. I believe her story is the story of immigrant women and Brazilian women as well, who were in worse conditions, with fewer resources and less information, who experienced abortions in precarious situations. In short, abortion was always discussed at my home, so when I discovered that abortion was a crime, I was alarmed! I had grown up in a home where it was discussed without a lot of fuss, and I couldn't conceive of it as a crime.
Regina There's a lot of confusion between legalization and decriminalization. What's the difference between the two terms?
Margareth There was a time when this distinction went virtually unnoticed. The feminist movement was debating whether to demand from government a public policy on women's health that would include contraception and abortion. At the time, it was not possible to demand abortion from a public policy perspective. The Program for Women's Comprehensive Healthcare [PAISM in Portuguese] introduced a more comprehensive perspective on care. A woman would no longer be viewed as a maternal body, but in all her plenitude, in all of her life phases. That's where sexuality comes in, issues associated with sexuality and contraception. A major part of the feminist movement began to demand rights from government. So, in those initial years, what women wanted was the production of knowledge on their own bodies. That was what happened at feminist meetings, a time of grand discoveries, but there was also great pressure and demands for public policies. When we look back on those decades today, we ask ourselves why we were so quick to make demands on government. On the one hand, this was interesting, but on the other it created another front in the struggle, since both things were happening at the same time, strengthening the social movement and re-democratization, and strengthening the state. This created new challenges for women's struggle for autonomy. So, abortion came back as legal abortion, associated with public policy. And this debate still exists in the field: what would have happened in the struggle to legalize abortion if Brazil had not launched into the implementation of abortion "on legal grounds", as abortion allowed by the prevailing legislation is called in Latin America. When Ruth Cardoso talked about "starting with what we have", it meant opting for implementation of what existed, in a law from 1940. We had the expert report by José Carlos Dias, a renowned criminal attorney who testified at Ruth Cardoso's request, calling for a reexamination of the 1940 law to determine what could be implemented on its basis. It was an innovative reading, in my view, and very important for technical and political action and policies. The International Women's Health Coalition [IWHC] proposed a meeting of feminists, physicians, and administrators from the Brazilian Unified National Health System [SUS] to discuss the reality of abortion in Brazil. The IWHC financed three policy dialogues: on new contraceptive and conceptive reproductive technologies, maternal mortality, and the reality of abortion in Brazil, assigning a leading role to Dr. Aníbal Faundes, as a medical leader who could encourage alliances in the medical field. Meanwhile, the feminist camp needed a space for dialogue to resolve previous tensions, such as research activities on Norplant in Brazil and their suspension by the Ministry of Health. For the third seminar, National Congressmen José Genoíno and Eduardo Jorge were invited. Eduardo Jorge ultimately submitted a bill to the National Congress requiring the Brazilian Unified National Health System [SUS] to offer legal abortion services in all hospital units. The bill began to move forward in the late 1980s and early 1990s, and for a while there was fear that any and all authorizations for legal abortion would be lost. At the time, Sonia Corrêa and I adopted a different strategy: to take the focus off of Congress and put it on the Executive Branch. The Inter-Sector Commission for Women's Health [CISMU] under the Brazilian National Health Council [CNS] drafted a proposal for a resolution, passed with great difficulty by the Council plenary, to create standards and guidelines for the implementation of legal abortion in the public healthcare system. We were in the Fernando Henrique Cardoso administration, during the transition from Minister of Health Carlos Albuquerque to Minister José Serra, and one idea was to include the above-mentioned resolution as a provision in the context of formulating technical guidelines related to violence against women. On Cad. Saúde Pública 2020; 36 Sup 1:e00118319 the one hand, this was a highly important strategy. On the other, the entire debate on the other legal grounds, namely for abortion allowed in cases of risk to the mother's life, was completely overlooked and was ultimately brushed aside. Abortion in case of risk to the mother's life is still a serious debt by the Brazilian State to Brazilian women, because practically nothing was done about it. Resuming the question, that seminar was the first moment of the debate between legalization and decriminalization. Legalization, in some way, now guaranteed that this right would become mandatory for the State as soon as it became law. And decriminalization simply says that such and such a thing is no longer a crime. At first, before this relationship between feminism and the State, the more liberal Brazilian feminists struggled for decriminalization, claiming that abortion was an act of women's autonomy, of the right to their own bodies, independently of the State. The debate is interesting, because although on the one hand this is a real issue, on the other, how does one guarantee this right in countries so unwilling to view abortion as a right? Meanwhile, with women returning from exile and the democratic rule of law being consolidated in Brazil, there was widespread thinking on the promotion of public policies, with innovative laws, and it was evident that the right should be extended to all women. If abortion were not made legal, poor women would be jeopardized, because the State would not be expected to provide this healthcare. If it were simply no longer a crime, who would actually be able to have an abortion? That was why the Campaigns for Legal and Safe Abortion (in the Coalition for Decriminalization and Legalization of Abortion, an initiative spearheaded by the feminist movement in the early 2000) ended up incorporating both agendas in its discourse. The agenda for legalization grew in theory, but there were huge obstacles in the way. We've been in a political swamp for a long time, and I don't think we'll pull out of it that soon!

Regina So, what happened with the bill proposed by Eduardo Jorge?
Margareth It continued to circulate in the National Congress until it was shelved, together with the bill proposed by Congressman José Genuíno, which proposed decriminalization of abortion up to twelve weeks gestational age. These two experiences with bills of law are excellent examples for debating the decriminalization and legalization of abortion. One bill said that abortion would no longer be a crime, but it did not guarantee that the procedure would be performed. This was a crucial debate, carried out at the seminar we discussed above. Based on it, Eduardo Jorge intended to create the conditions for legal abortions to be performed by the SUS. Importantly, this issue is not exclusive to Brazil. The legalization of abortion is a "global saga", something that never ends! It could easily be seen as a human right, but it is not.
Cristiane Say more about this "global saga". Margareth At the International Conference on Population and Development in Cairo in 1994, abortion was a central issue for the international women's movement. Reproductive rights as human rights had already been addressed in 1993, at the International Conference on Human Rights in Vienna, and in this process, sufferings and injustices were discussed explicitly. It was really possible to see that banning free access to abortion was actually a global issue that involved the control of women's bodies and autonomy. It was a global saga that would demand multiple initiatives to achieve change. Paragraph 8.25 of the Cairo Declaration became famous, and the Brazilian delegation played an outstanding role in drafting it (especially Elza Berquó and Jacqueline Pitanguy, who negotiated the wording directly). The idea of setting standards for legal abortion made headway, and upon returning from Cairo, legal abortion gained major impetus in Brazil. But since then, all the religious and conservative fronts have also become stronger. Since the 1990s, all the congressional fronts for family rights were created in the Brazilian National Congress. They were even headed by Congressman Eduardo Cunha [now in prison], always extremely impressive. When these fronts were created, no one knew the extent of the corruption in which they were all involved. At the time, for example, a leading Peruvian researcher, Jaris Mujica, unmasked exactly that issue with an analysis of the Peruvian Members of Congress, proving that the most vociferous opponents of the right to abortion were precisely those with various kinds of criminal involvement, ranging from weapons trafficking to corruption. So, I began to think this might be true of the Brazilian Congress, namely, why is it so important to be against abortion? Why is this a rallying cry for purity and morality? It coincides with the historical vote on impeachment [of President Dilma Rousseff, in 2016], in which everyone invoked the family, the right to the family, etc. This was Cunha's rallying cry until he was arrested. He was already politically battered, but he continued to submit and resubmit bills to the National Congress to limit abor-Cad. Saúde Pública 2020; 36 Sup 1:e00118319 tion rights. The struggle for the right to abortion is a symbolic struggle for various fields, a symbolic war that has no end. It is a saga. A metaphorical and extremely difficult war.
Cristiane Cairo really was an important political milestone for Brazil. Margareth At the meeting in Cairo, everyone said that Brazil was ten years ahead of the other countries. Brazil had already produced the idea of comprehensiveness, had proposed the idea of legal abortion, but little by little Brazil began to appear problematic in the area of mechanisms for implementation of public policies, like the report by CEDAW [the Committee for the Elimination of All Forms of Discrimination Against Women]. Brazil appeared as a country with beautiful laws, but terrible processes of enforcement and even worse processes of evaluation. Brazil was the country of words! In the 1980s, it was not implemented because in fact we did not know the State very well, we did not know how to proceed, and there was no culture of public policy implementation and assessment. In my view, what was really missing was knowledge. And later it all turned to dust. Where are the legal abortion services in Brazil? Twenty-five years after Cairo, where are they? Of course, we have made a little progress: the right, ensured by the Supreme Court, to therapeutic anticipation of delivery in cases of anencephaly. Even before that, there were the inflections in the Cardoso and Lula [Luiz Inácio Lula da Silva] administrations. I think the Ministers [of Health] during the Workers' Party governments played a role that fell far short of their potential. During the first Lula administration, a bill was submitted by the Women's Secretariat that provided for legalization of abortion, but it was negotiated so extensively that it was completely disfigured.
Cristiane Still, the right to termination of pregnancy was defended by Health Minister José Gomes Temporão, and the argument for abortion as a public health issue appeared to be gaining momentum at the time.
Margareth And yet, the argument didn't survive, that was the problem. As soon as Temporão took office, he launched a public debate on abortion as a public health issue. Actually, it was already a familiar WHO strategy. The struggle for the right to abortion was difficult, and the strategies to change the legislation, the arguments for the right to sexuality, the right to one's body, were no longer moving forward, so the idea was to start taking another line of argument. The approach was to start working with the idea that it was necessary to produce scientific evidence. Universities began to incorporate the issue. Isabel Baltar 1 at NEPO had already been developing a study that revisited the history of various Brazilian bills of law on abortion, analyzing activity by the country's conservative sectors. A specific call for research projects on abortion was launched, and various studies began. We have the publication Twenty years of research on abortion in Brazil 2 , the Alan Guttmacher Institute producing regular data, the Center for Reproductive Rights, and IPAS Brazil working systematically on the topic. Meanwhile, we must admit that we failed: in an Administration headed by a woman, that had a Women's Secretariat with a history totally aligned with the struggle for the right and for the legalization of abortion, the way that government dealt with the issue was surprising and fell far short of expectations.
Regina Theoretically, we had the ideal situation to make a little more progress. Margareth Temporão and I recently met at a panel discussion, and he said, "We have to do something, because abortion is a democratic issue." I said, "Fine, but in the Administration, there was Lula, with you as Minister of Health, Nilcéa Freire as Minister of Women's Affairs, and Maria José Araújo as coordinator of the technical division on Women's Health, certainly very fearless." What other more favorable situation could the country have? Ultimately, there was a political ambivalence, because even as the Administration displayed a progressive style, it also flirted with religious and conservative sectors. We won't forget the agreement between Brazil and the Holy See, signed in 2010, or the agreements signed during the election campaigns in the four Workers' Party terms (in February 2010, Brazil issued Decree n. 7.107 3 , establishing an agreement between the government and the Holy See pertaining to the Catholic Church's legal status in Brazil, signed in 2008 at the Vatican). The agreement signaled the Catholic Church's growing force during the Lula Administration, facilitating tax and property issues, among others, and extensively supporting religious teaching in public schools. During the election campaigns for Lula and Dilma's Presidential terms, abortion was debated not under feminist leadership, or much less on the campaign platforms of the Workers' Party [PT in Portuguese], fearing loss of popularity for its candidates if they took a more progressive stance. The discussion was raised by candidates linked to religious fronts, especially Evangelicals. In this scenario, the argument of the defense of the Cad. Saúde Pública 2020; 36 Sup 1:e00118319 lay State was strengthened for obvious reasons. In my opinion it's highly unlikely that we'll ever have another similar situation. Currently, I believe there is no longer an atmosphere for positive changes in the National Congress. On the contrary, we're risking losses. In 2010, the CCR, together with Debora Diniz of the National Feminist Network for Health and Sexual and Reproductive Rights and IPAS Brazil, we formatted a bill for legalization of abortion. But again, we faced resistance from various camps, and what prevailed in the women's movement was the chorus, "Now is not the time". So, it's never been the time! And we lost. There was a breath of hope in the Supreme Court in 2018, but it didn't last long.
Cristiane In Uruguay, there appears to have been a unique composition between physicians and the feminist movement that had determined very clear steps for the entire process.
Margareth And money! Carmen Barroso was very important in this scenario. She wanted to change the nature of the IPPF offices (International Planned Parenthood Federation) in Latin America, developing services that were closer to the feminist positions, including providers of abortion care, starting with Uruguay. Why Uruguay? Besides having specific opportunities related to the original institution itself, the country had always been very well positioned from the point of view of social indicators, even historically, with high schooling levels, less conservative, with an active feminist movement, and with medical leadership open to developing experiences as examples. In fact, they produced a harm reduction strategy associated with implementation of the right to abortion, providing information and access to medical abortion 4 .

Regina What about Mexico?
Margareth Mexico anticipated the Uruguayan experience, with differences in the public healthcare system and policies. They passed a municipal law in the national capital, which is one of the world's largest cities. They had to fight the opposition acting at the local level and in the other states of the country seeking to restrict the prevailing laws. Mexico is impressive, because despite the operation's size, it produced a technically and politically exemplary experience in a large and complex health system. They introduced misoprostol, addressed the debate on conscientious objection, and opened a specific public admissions process to hire physicians who would not be allowed to claim conscientious objection, since the admissions rules specified that such objection was not allowed 5 . They also established an incredible data production system. For years, they only recorded one death. They gave an institutional face to the program in order to overcome the stigma attached to abortion, even the patients' gowns, which were colored, producing a fascinating political and cultural transformation.
Cristiane Focusing on Brazil again, we moved from a line of argument on abortion as a matter of rights and autonomy to one framing it as a public health issue, and now we see a turn towards dealing with abortion through the courts.

Margareth
In the midst of it all is the issue of emerging technologies, namely an effort to introduce MVA (manual vacuum aspiration), which is not just recent! And misoprostol, which Brazilian women started to use in the early 1990s, as we showed in early studies 6 . Since then, the benefit from this medication has been shown consistently, even when used illegally, reducing mortality rates from abortion in Brazil. But now we're back to having difficulties with access.
Cristiane Are we going back to the scenario of illegal abortions using sharp instruments? Margareth Yes, it's consistent with the current overall backstepping scenario in Brazil. But I think we need a better understanding of these "forward-backward" processes in the social sphere. The last twenty years were also a time for convincing public opinion to show more empathy and solidarity for human suffering. The issue was put on the agenda, it was in the media, it was debated, and it gained space in the public opinion. There was a moment of greater acceptance by public opinion for expanding the cases allowed by law. But this all failed to persist, and the spaces were shut off. They did not move forward as they should have, in either the Legislative or the Executive Branch. Brazilian women actually found a solution with the use of misoprostol, which was also blocked by pressure from religious sectors and local, state, and national authorities. It was a solution that appeared to be working, but Anvisa [the Brazilian Health Regulatory Agency] took charge of limiting its use to the hospital setting, consistent with the conservative sectors' wishes, despite all the scientific evidence of the benefits from the drug's use. Today, misoprostol is in the hands of drug dealers. So, all the efforts, all the roads were long and difficult, including the approval of anticipation in cases of anencephaly.
Cad. Saúde Pública 2020; 36 Sup 1:e00118319 Many different paths have been tested, with very limited results. Brazilian women can still not have abortions. They have to go underground and run completely unnecessary risks, legal and health risks, ultimately risking their own lives. So, it really is a monstrous barrier.

Regina What is your opinion on appealing to the Supreme Court on ADPF 442 [Argument on
Noncompliance with Fundamental Principle 442], which requested that criminalization of abortion be analyzed in light of the Federal Constitution? Do you think this will produce results?
Margareth It emerged as a logical solution. As I said before, you try via the law and it doesn't work, you try via the Executive Branch and it doesn't work, you try via technology and it doesn't work. Fine, what's left then? What's left is the Supreme Court, where at a certain stage there was all that discussion on the situation of embryos, which could have been a promising approach. Some progress was made in relation to anencephaly, but then it was all locked down again. It was possible to produce the argument that allowed anticipating delivery in cases of anencephaly. But we have a very cruel mechanism by which the minor gains, the small steps, fail to materialize as effective results. This is a drama, maybe even in various other public policies in Brazil. It's even worse in the case of abortion, since we don't have a group of professionals that are aware of the lack of conditions for such a policy to be operationalized. So, I think that the natural path was to turn to the Supreme Court, but another step forward would be hard to achieve, a debate and a victorious outcome in this process. All the more so now, with Brazil's political situation as it is. The Supreme Court would have to hand down a ruling, but the country is very hung up now on a lot of political posturing, se we run the risk of having the opposite outcome from what we really want.
Regina How do you assess the current situation? Does the country run the risk of losing even the current legal grounds for abortion?
Margareth The Minister for Women, Family, and Human Rights has just been nominated. It's a ministry that includes various agendas and is headed by a cabinet member who defends the passage of the Statute for the Unborn Child. So, the times ahead for this agenda will be extremely difficult. We run a real risk, with hints at this in speeches and expressions. For example, she recently declared in the media that "the time has come for the church to rule". We definitely have very difficult times ahead.
Regina Which paths can be explored? What can be done in the meantime? Is it time to focus efforts on expanding access to and use of emergency contraception?
Margareth Women are already doing that. The CFEMEA has already worked a lot on that idea, to abandon abortion and work only for emergency contraception. I think it makes sense, if it were to actually work on something pertaining to contraception, to replace the restrictive law on abortion, I have no doubt that emergency contraception would be an excellent path. Among other reasons, because women are obviously using it already. However, according to a study we're doing at NEPO, low schooling is the main determinant of failure to use the method. That is, there is still a large contingent of women who lack access to emergency contraception.
Cristiane How do you view the debate on the emphasis on the use of long-acting reversible contraceptives [LARCs], promoted as the "solution" to the problem of unplanned pregnancies?
Margareth I still don't see anyone addressing this properly. When I was at UNFPA, we hired a consultancy to attempt to analyze this issue and to show that it is UNFPA that determines the modalities in the mix of contraceptives purchased by health departments. At the time, nearly eighteen years ago, it was terrible to see the predominance of injectable contraceptives. We questioned this many times, saying: you defend reproductive rights as an institution, but in practice you encourage a strategy that determines this method's predominance, you're being guided by a market law and not by a criterion based on the defense and promotion of women's right to decide. I don't know how it is now, but the weaker and more vulnerable the government, the stronger the United Nations is to make the technical decisions. In practice, there are no reproductive rights if there is no supply of a substantive mix of available contraceptive methods. That's why it's necessary to purchase and supply, at the same time, the complete package of contraceptives for people to be able to determine what they're going to use. And this has to happen all across the country. Market imposition is fatal, and we have fewer and fewer resources, less space, and fewer tools to effectively analyze and address the situation. People are marching lockstep towards automatism in their contraceptive definitions and decisions, reproducing the hegemonic cultural forces, with little or virtually no critical personal positions. Unfortunately, Cad. Saúde Pública 2020; 36 Sup 1:e00118319 individuals are moved increasingly towards imposed technologies, losing the decision-making power over themselves, over their own lives.
Cristiane To wrap up this conversation, you began by talking about the dimension of sexual and reproductive rights in Brazil. If you had to list the main challenges in this field today, what would they be?
Margareth This is an excellent question, and a big one. First of all, we must admit that we're living in a completely different moment in the country, and that we have to learn to live with it. We have to admit that we're in a different cycle. The way societies function in all their diversity, including as the result of the breadth that respect for democracy spawns in political relations, raises difficulties for us, even for understanding what is emerging. The growth of Evangelical religious forces, for example, can also be understood as an increase in respect for diversity. We are living in a very different world from the one we knew and produced in the last four decades. And now a "Stop Right There!" sign has appeared. Now we have to breathe deep, to try to understand again, to check the conditions and possibilities for continuing to commit ourselves, to seek connections that allow us to move on without losing sight of what we value.
In any case, I would say we need a good and consistent body of research, especially qualitative studies, for us to be able to illustrate and complexify some data we already have in our hands. We understand very little about some aspects of the relationship to one's body, to sexuality, and to reproduction. There have been many unexpected changes, like younger women's decision to not have children. People initially thought it was about postponing motherhood, but both in Brazil and elsewhere in the world, it turns out to be a decision to eliminate the motherhood project from their lives, that is, to no longer perceive motherhood as necessary for a life history that can bring happiness and pleasure. Meanwhile, there is evidence of more marriages of younger men and older women, and that as a function of men's wishes, the women are resuming the reproductive experience, having more children. I wonder: what impacts will the conservative wave have on the scenario we're experiencing? I would like future generations to have access to a wide set of information, to attest to how much the country has changed in the field of reproductive rights in the last four decades, and that it has done so magnificently. However, there is still much reproductive injustice, much inequality, and some new phenomena that only a solid body of research and much critical observation and analysis can help us to understand. Brazil's and the world's conservative about-face will hold surprises that we are still unable to predict. From now on, in order for reproductive rights to be maintained, today's youth will have to exercise strong leadership. But how does a world that's skidding out of control create a future? I still believe that the force of desire is an anchor that can facilitate every individual's path, but if we aren't able to confront our social symptoms and our phantoms, there will be little we can do to change as a society.
Cad. Saúde Pública 2020; 36 Sup 1:e00118319 Contributors C. S. Cabral and R. M. Barbosa contributed to conceiving the study, conducting the interview, and editing and revising the manuscript. M. Arilha granted the interview and revised the manuscript.