## Facts

- A national health workers’ confederation filed an abstract constitutional challenge contesting lower-court interpretations of criminal abortion provisions as applied to pregnancies involving anencephalic fetuses.
- Anencephaly was medically characterized as a neural tube defect causing inevitable fetal non-viability, with survival (if live birth occurs) typically limited to hours or days.
- Before judgment, access to termination often depended on individualized judicial authorizations; outcomes varied across courts, and some pregnant individuals were compelled to continue non-viable pregnancies.
- The claim asserted that treating termination of anencephalic pregnancies as criminal abortion violated constitutional guarantees of dignity, autonomy/freedom, and health.
- The challenge targeted the constitutional meaning attributed to Penal Code provisions criminalizing abortion and listing limited exceptions, not the wholesale invalidation of abortion crimes.

## Issues

1. Whether it is constitutional to interpret Penal Code provisions on abortion to criminalize termination of a pregnancy involving an anencephalic (non-viable) fetus.
2. Whether criminalizing such termination violates constitutional precepts protecting dignity, autonomy, health, sexual and reproductive freedom, and state secularism.
3. Whether constitutional review may provide a binding interpretive remedy that excludes anencephalic pregnancies from the scope of abortion crimes without nullifying the statutory text.

## Decision

- The en banc court granted relief by an 8–2 vote.
- The court held unconstitutional any interpretation that treats termination of an anencephalic pregnancy as conduct typified by the cited abortion-crime provisions.
- The court distinguished criminal abortion from “therapeutic anticipation of delivery” where extra-uterine life is medically impossible.
- The ruling did not repeal abortion crimes or create a general decriminalization of abortion; it removed anencephalic pregnancies from the criminal category.
- The judgment produced generally binding effects on courts and public administration.

## Legal Principles

- Criminal statutes must be construed in conformity with constitutional rights; where application would unjustifiably infringe fundamental rights, an interpretive remedy may exclude the unconstitutional application.
- When medical evidence establishes fetal non-viability (anencephaly), the state lacks a protected interest in “potential life” sufficient to justify criminal punishment for termination.
- Compelling continuation of a non-viable pregnancy against the pregnant person’s will violates constitutional protections of dignity, autonomy, and physical and mental health, including access to therapeutic care.
- In a secular republic, criminal and public health policy must be justified on public reasons; religious or purely private moral convictions cannot control criminalization where constitutional rights are infringed.
- Criminal law, as a last-resort instrument, must satisfy proportionality; punishing termination in cases of inevitable fetal death is disproportionate relative to the rights burden imposed.

## Conclusion

The court held that abortion crimes cannot be interpreted to criminalize termination of pregnancies involving anencephalic fetuses, treating such procedures as constitutionally protected therapeutic interventions grounded in dignity, autonomy, health, reproductive freedom, and state religious neutrality, while leaving the broader statutory abortion framework intact.


Confed. Nat’l of Health Workers v. President of the Republic, Arguição de Descumprimento de Preceito Fundamental No. 54 (Braz. Sup. Fed. Ct. 2012)