Cari Maes

To date, Brazil has registered over 500 cases of Zika-related microcephaly and another 4,000 cases have yet to be confirmed. With the country set to host the 2016 Summer Olympics, what was a domestic public health crisis has attracted international concern and media attention. In particular, Zika has revived longstanding reproductive rights debates in Brazil and Latin America, a region where women face some of world’s most restrictive abortion laws.  At one end of the discursive spectrum lie Brazilian and international health experts advising women to delay conception until the epidemic subsides. On the opposite end, reproductive rights stakeholders at home and abroad, including the World Health Organization and, perhaps more strikingly, the Pope, have recommended relaxing restrictive abortion laws and increasing access to contraception in Zika-affected countries.

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DNCr Maternity Monument, Rio de Janeiro, Brazil, 2010. (Photo by Cari Maes)

Recently, a group of Brazilian activists and academics has gone a step further by presenting the Supreme Court with a motion to provide a range of legal reproductive health options, including abortion, for women with confirmed cases of Zika. One of the group’s leaders, Professor Debora Diniz, argued that any legal reforms must confront both the historical and contemporary discordance between principle and practice in relation to abortion.  She cites, for example, her 2010 study revealing that by age forty, one in five Brazilian women had an abortion despite laws defining it as a criminal offense.  Yet, two recent polls, one conducted in 2014 and the most recent in 2016 amidst the Zika epidemic, show that a majority of citizens do not support the full legalization of abortion despite its widespread practice.

Although the law permits abortion in cases of rape, life-threatening pregnancies, and, as of 2012, fetal anencephaly, Brazil’s criminal justice system lacks any formal mechanisms of enforcement or prosecution. Such discrepancies between de juro and de facto interpretations of law and policy also extend into the realm of public health. Brazil’s national health system, established in 1990, provides zero-cost health care to all citizens, yet it only recently began funding abortion services following a 2014 federal mandate. Federally funded hospitals continue to offer limited access to legal abortions nationwide, making extralegal abortions the norm. Upper and middle-class women who can obtain relatively safe clinical services face fewer health risks, while those among the working-class and poor often encounter unsafe, sometimes life-threatening practices. Nationally, unsafe abortions rank as the fifth leading cause of maternal mortality.

Indeed, one of the key challenges in the Zika crisis involves aligning public health responses and potential abortion law reform with the needs and values of contemporary Brazilian society. At the heart of this enduring misalignment lies a discursive tradition that has historically favored the ideal over the real as the basis for law and policymaking.  As the work of historian John D. French illustrates, nineteenth-century elites established this precedent by defining lawmaking as a philosophical endeavor that gave only minor consideration to the social problems experienced by everyday Brazilians.  Following this convention, generations of ruling elites have devised laws and policies, particularly in relation to public health, that have been poorly attuned to the majority of Brazilian citizens’ needs.

Following this trend into the twentieth century, we arrive at a pivotal milestone in the evolution of health policy and abortion law in 1940—a moment that shares striking connections with the debates encircling the abortion issue and the Zika epidemic today.  The core issues around the current abortion debate, namely state control over women’s reproductive sovereignty and health care access, date back to this year, when lawmakers and health experts undertook the dual task of revising the federal penal code’s abortion law and constructing a national maternal and infant health care system.  Most significantly, abortion laws in effect today originated in the 1940 Penal Code and have remained unchanged for more than seventy-five years, with the exception of the 2012 fetal anencephaly clause.

The year 1940 also marked the nationwide rollout of an unprecedented infant and maternal health care program that responded to a contemporary public health crisis: high infant mortality.  On average, one out of five infants died before the age of one during the first decades of the twentieth century, with remote rural areas reporting even higher infant mortality rates. Other industrialized countries, including the majority of Latin America, reported significantly lower and less static rates of infant death during this period. In the context of the crisis, women’s and children’s bodies and their imagined value to Brazil’s prosperity became contested objects within legal and political debates, as they have become in recent months amidst the growing Zika-microcephaly epidemic.  Discourses surrounding abortion law and health reform in 1940 resonate today as health officials and lawmakers reassess reproductive rights amidst another health crisis.  A closer view of these initiatives in 1940 therefore helps untangle the complex web of social attitudes, practices, policies, and laws that pervade abortion debates in the context of the Zika.

In the 1940 Penal Code revision, federal judges and lawmakers defined abortion as a criminal offense, as it had been in the previous century. However, they added two new clauses that legalized abortion in the case of rape and for pregnancies that threatened the mother’s life. The provision of abortion in cases of rape reflected the endurance of colonial-era patriarchal and religious concern with protecting female honor. Lawmakers likewise imagined that allowing abortions for women facing life-threatening complications ultimately preserved their reproductive capacity because they could fulfill their maternal roles with a subsequent pregnancy.

Yet, these traditional values had to be reconciled with important twentieth-century social and political changes. By 1940, women gained the right to vote, mobilized politically, and became a key source of labor in the country’s expanding economy. In turn, the state began to construct deliberate policies to regulate and protect women’s honor, productivity, and health, particularly their reproductive health and fertility.  As Sueann Caulfield argues, the 1940 Penal Code defined the state, rather than family patriarchs, as the ultimate protector of women’s bodies and virtues, as policymakers thought productive and reproductive labor impelled national development.

The expansion of reproductive rights under the 1940 Penal Code demonstrated early twentieth-century lawmakers’ attempts to balance women’s evolving roles in society with the patriarchal authority of the modern state.  Yet, the ideology behind the new abortion law did not correlate with social realities. Very few, if any, women exercised these new rights freely, as religious beliefs and social norms continued to constrict women’s options when faced with an unwanted pregnancy resulting from rape. Access to a life-saving, clinical abortion, furthermore, was a privilege of elite women in Brazil’s major urban centers and, even there, options remained scarce. Elsewhere, particularly in rural settings, women had little access to basic health services, much less a physician equipped and willing to perform abortions. Despite the legal provisions, urban poor and rural women continued to terminate pregnancies by other, often life-threatening, means – as their present-day counterparts continue to do today.

The 1940 abortion law also diverged in critical ways from a concurrent public health campaign launched by the corporatist dictatorial regime of Getúlio Vargas (1937-1945).  An ambitious infant and maternal health initiative took center stage in Vargas’ Estado Novo (New State) development agenda. Headed by a group of pediatricians, a new federal department, the Departamento Nacional da Criança (National Children’s Department) (DNCr) rolled out the basic architecture for Brazil’s first national maternal and infant health care system. At the DNCr inauguration in 1940, Brazil’s Minister of Health and Education declared the department would “raise the number and quality of the Brazilian population” by providing all women with “favorable conditions for conception, pregnancy, birth, and child rearing.” Brazil’s future, it seemed, lay in women’s ability to produce and raise healthy children.

To buttress its public health mission, the DNCr developed a robust pronatalist and “pro-child” civic campaign. Comprising print media, radio programming, annual ‘Children’s Week’ celebrations, and healthy baby pageants, the DNCr further promoted the idea that children were the harbingers of Brazil’s progress and prosperity. By the late 1940s DNCr health posts existed in every state. Mobile clinics and itinerant community health workers served women and children in remote, rural areas that had previously lacked even basic health services. Health post personnel dispensed medications and vaccines, offered pre-and post-natal exams, collected vital statistics, and taught courses on puericulture, a nineteenth-century French-inspired approach to healthy child-rearing.

Not surprisingly, DNCr posts did not provide contraception or abortion services. In fact, DNCr officials used health posts and print media to further stigmatize clandestine abortion, characterizing both lay midwives who induced abortions and their female patients as ‘anti-patriotic.’ DNCr propaganda and outreach campaigns made no references to women’s reproductive rights at all, despite the expansion of abortion laws in the 1940 Penal Code and therefore effectively nullified the concomitant expansion of reproductive rights enacted in that legislation.

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Getúlio Vargas, President of Brazil (Wikimedia Commons)

In 1940, abortion law and public health policy ventured into uncharted territory, yet they moved in opposing directions. Lawmakers demonstrated that the state was willing to afford women new reproductive rights, although a lack of medical services and enduring social stigma prevented women from exercising them freely. The Vargas administration also formulated public health planning and child-focused statecraft that circumscribed reproductive rights. Most notably, federal health posts did not offer abortion services, and their programs were decidedly pronatalist, valorizing procreation and childrearing as women’s ultimate duty to the nation. DNCr officials certainly did not have women’s reproductive sovereignty in mind when they designed a national maternal and infant health system, and its programs ultimately failed to address the health disparities between urban and rural, rich and poor. The incongruity between the 1940 abortion law, DNCr programming, and social realities further solidified an historical pattern in which the policy goals of the state moved out of step with the needs of the people.

An awareness of the past, historian Tanya Hart argues, can help present-day public health officials and policymakers avoid inadvertently reproducing approaches that undercut the intended benefits of their programs. This view from 1940 thus provides twenty-first-century stakeholders with instructive insights for formulating effective public health responses and abortion law reforms amidst the Zika and microcephaly epidemics, as it illuminates how law and public health policy have historically counteracted one another and have been poorly attuned to the needs and values of contemporary society.

Like their counterparts in 1940, Brazilian lawmakers and health officials now face both a mounting health crisis and the opportunity to revise the parameters of reproductive rights. They can avoid their predecessors’ missteps by taking a sober look at the orientation of the health system and acknowledging the complex historical relationship between law, public opinion, and the reality of extralegal abortion. Whether or not Brazil’s Supreme Court legalizes abortion for Zika-infected women in the coming months, the epidemic represents a critical turning point in reproductive rights debates that impels lawmakers and health officials to reckon with the past in order to synergize abortion law and health policy with current and future social realities.


maesCari Maes is an Instructor of History and in the School of Language, Culture, & Society at Oregon State University. She received her PhD in History from Emory University. Her research focuses on maternal and infant health policymaking and the place of children in national identity construction in twentieth-century Brazil. She is currently working on a project investigating the history of infant and maternal community health care workers and mobile clinics in rural Brazil.



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