Governing Abortion By Standards. Abortion Policies In Brazil Since The Late 1980s

Brazil is one of the few countries with restrictive abortion laws to have implemented specialized hospital services to attend patients eligible for non-criminal abortion. Studying the regulation process which accompanied the implementation of these services from the late 1980s onward, the present article describes the emergence of a “government by standards” applied to legal as well as clandestine situations of abortion. Key-words: Abortion; Norms; Liberalism; Public policies.


INTRODUCTION
Abortion is illegal in Brazil, 1 except in cases of pregnancy resulting from rape, or when it is resorted to in order to save the patient's life. 2 Restrictive abortion laws, admitting similar exceptions, can be found in most Latin American countries; but only in Brazil have hospital services been set up to attend patients eligible for non-criminal abortion.
The first such services, however, only became operative in the late 1980s, following the country's return to democratic government.The Women's movement, unwilling to scramble for an unlikely revision of abortion laws, encouraged instead the regulation and implementation of authorized exceptions already provided for by the penal code 1 The empirical material used in this article is taken from my Master dissertation.In 2008, I had the opportunity of doing ethnographic work in Rio de Janeiro and São Paulo.In particular, I conducted interviews with health professionals in non-criminal abortion programs and with activists campaigning for the decriminalization of abortion.I also worked in the CEPEDISA (Centros de Estudos e Pesquisa em Direito Sanitário) at the University of São Paulo, where I collected a comprehensive bibliography on the subject (Castelbajac, 2008). 2 Código Penal, Decreto-lei 2.848, December 7, 1940, article 128.In both cases the procedure must be performed by a licensed medical doctor.A third exception which was not originally contemplated by the legislator, but which is regularly authorized by judicial decision, is abortion in case of fetal malformation incompatible with extra-uterine life.See, in particular, Diniz, 2003.ged a been defined in relation with legal exceptions for which abortion is not punished. 4Formally, then, there always have been at least two possibilities with regard to abortion, i.e. punishment or tolerance.I will call legality test the juridical, technical, and moral criteria used to determine whether a situation should be punished or authorized.Here, a seeming paradox ought to be pointed out.Despite the vehemence displayed by abortion laws, it seems that there always have been very few situations of abortion actually put to the test of legality.Most empirical cases seem to have eluded public judgment.They were neither punished nor tolerated, but lost in the blur of clandestine actions. 5ortion laws (and especially authorized exceptions of non-criminal abortion) were seldom, but not never, put to use.They were occasionally enforced, though not as systematically as their severe, detailed and wide-ranging provisions would suggest. 6is is easily explained.What is asked by law to punish or permit an abortion is so difficult to satisfy that it seems to have held most empirical cases below the test of legality.This constricted situation constitutes something like a "juridical boundary effect" (Bourdieu, 1980), i.e., an informal numerus clausus.A high, almost unreachable level of legal requirements not only repressed out of the public sphere the great bulk of induced abortions; it also undergirded the social selection of a small sample of the phenomenon.Thus, only the few situations measuring up to the strict requirements of the law are in fact exposed to public judgment. 7e politicization of this issue was slow and lingering.For one, the low number of authorized abortions came with an equally low number of abortions punished to the full extent of the law, and this precarious equilibrium probably offered a satisfying compromise to the conservative segments of society.How narrow the test was, furthermore, was something women struggled against in isolated circumstances.To expose this diffuse injustice in the public sphere, women needed to aggregate their individual experiences under a collective banner.In the vocabulary of Laurent Thévenot and Luc Boltanski, they had to perform a "montée en généralité". 8The 4 I have drawn a genealogy of Brazilian abortion laws in an article submitted to the Revista de Direito Sanitário (Castelbajac, 2009). 5The scarcity of punished cases is a well documented fact (Ardaillon, 1998).Likewise, reports of authorized abortions in public hospitals were extremely rare prior to the 1980s (Faúndes et al., 2002: 121;  Villela, 2000: 78). 6Therapeutic abortion, for instance, was practiced exceptionally, though certainly more rarely than it could have been, considering the constantly high rate of mortality during pregnancies in Brazil throughout the XXth century (Faúndes & Torres, 2002:147). 7With regard to the legal situation prevailing in France before abortion was decriminalized by the Loi Weil, Luc Boltanski questions "whether the role tacitly imparted to the law was really to make abortion disappear, or at least to limit it numerically, or if, instead, it was meant to block out moral experiences linked to abortion from the public sphere" (Boltanski, 2004: 218). 8"Montée en généralité" is the process of extracting oneself from a local situation to reach a higher level of generality in debate.It can also be applied to the aggrandizement of particular claims into a common  For my immediate purposes, I only need to point out a few key events.11First, a woman running as candidate for the Workers party was elected as mayor of São Paulo. 12The new city government immediately created a Secretariat of Women's Health.Second, a special committee was convened by the Secretariat to reflect on the opportunity of regulating non-criminal abortion.Representative organs of juridical professions and medical federations were then assembled in "hybrid forums", 13 where experts, political actors and civil society representatives made recommendations for the regulation of non-criminal abortion.After this period of consultation, an enquiry was conducted to determine the ideal location for a pioneer experiment.The Jabaquara hospital, a medical complex specialized in traumatology, was selected.Although situated in the periphery of the city, the hospital, with its large emergency department, had a thorough experience with clandestine abortion.Preliminary investigations also identified several individuals within the hospital staff, who seemed sensitive to the issue and ready to cooperate.Finally, a multi-professional team including psychologists, surgeons and social workers was formed within the hospital.
The Jabaquara experience is now twenty years old.It has paved the way for kindred initiatives in other hospitals of São Paulo and of several other cities in Brazil, many of which have adopted its organizational chart, operating rules and regulations. 14t these innovations have also been imitated in other services within the same hospitals.In particular, the concept of a multi-professional team has been generalized to rehabilitation programs for drug addiction and to family planning services.As a result, an initially marginal program, with rather experimental methods, and whose staffs were perceived in the beginning as renegades by their colleagues, 15 has become a standard reference for the modernization of public hospitals in Brazil.

CRIPPLING DIFFICULTIES FACED BY FEDERAL INSTITUTIONS
Regulation of non-criminal abortion is by and large the result of dispersed initiatives.
The place of origin of these initiatives (city councils, state parliaments, hospitals, and There is no need to suspect the occult influence of catholic lobbies in this matter.At this level, the dilatory tactics and the persuasive force of the Church are probably less formidable than what is frequently suggested. 17Partisan dispersion, the insufficient representation of women in the two national legislative bodies, the content agreement of morally conservative majorities with the compromise sanctioned by current abortion laws, and the other well-known causes of parliamentary inertia in Brazil, suffice to explain why the legal rules relative to abortion have never been changed since 1940.
The principal obstacle to the decriminalization of abortion is, really, the crass slovenliness of legislative institutions.By default, abortion policies have principally been discussed in decentralized circuits, at the level of some city councils and public hospitals, while the federal government has done little more than reiterate in the form of technical Norms standards that were devised in the first specialized services.

THE MEDICALIZATION OF ABORTION
Despite the federal government's slack grip on the issue, regulation of non-criminal abortion has indirectly affected the governability of abortion.Without any modification in the letter of the law, its spirit has been bent by regulation, so to speak, to serve new purposes.The priority of the state is no longer to quell abortion, but to organize it.An indication of this transformation is that the standards of medical assistance, care, and safety conquered by the regulation of non-criminal abortion have been extended to the medical treatment of complications related to clandestine abortion.The last technical Norm issued by the Ministry of Health has confirmed this extension (MS, 2005). 18art from occasional witch hunts, police control and criminal court actions against illegal abortion remain low, whereas the realization of non-criminal abortion in public hospitals (340 in 2005) and the number of hospitalizations for complications related to 17 The conspirationist pattern is commonplace in the literature on abortion politics.To give an example, taken from a nonetheless remarkable article: "(…) although the Church is separated from the state since the proclamation of the Republic (1889), it has the power of influencing and very often of defining state positions, in particular on issues relating to morals and sexuality (…).In the National Congress the conservative fringes of the Church maneuver to thwart liberal projects, in the corridors of politics, through virulent press campaigns and powerful lobbies."(Hardy e Rebello, 1996: 264).Based on this representation, one wonders why the Church has not succeeded yet in completely outlawing abortion.This is, I think, a typical case of confusion between cause and effect.If the Church nowadays concentrates on "morals and sexuality", it is really because these are the last two issues on which it still retains some authority.The shrinkage of the Magisterium to sexual mores corresponds to a change in contemporary attitudes towards sexuality -whose genealogy was sketched out, in particular, by Michel Foucault (Foucault, 1976).More often than not, in Brazil as in other secularized state the "influence" of the Church really boils down to verbal diffusion without concrete political translation.The symbolic violence displayed by the martyrology of sanguinolent fetuses is as high as the Church's political clout is low. 18The 2005 Technical Norm of Humanized Care for Abortion thus adds to the standards set by the first specialized services the obligation of treating with dignity and solicitude patients who require emergency treatment after a botched clandestine abortion.Post-abortive situations have thus been officially removed from the competence of the police; the Ministry of Health has extended in this sense the rule of physicianpatient privilege (in other words, doctors can be reprimanded for denouncing a woman treated for induced abortion).The Norm not only reasserts the right to non-criminal abortion; it also creates an informal right to curettage, to put it bluntly.violent deaths, and the innumerous list of potential complications described by Faúndes and Barzelatto, 2004).Short of decriminalizing abortion, the easiest measure to take was to officialize this makeshift arrangement.Directing political attention to the domain of Public Health was only a matter of normalizing a de facto situation: virtually, abortion had already become a Public Health problem.
Second, the opportunity for this normalization was brought about by the reform of Healthcare administration in the 1980s.Reform began in the final years of the military regime.New healthcare programs, directed at specific segments of the population (and in particular at women) were launched in the early 1980s, in a final effort of the dictatorship to appease social movements. 21These programs, -along with the policy of abertura undertook in the final years of the military regime; 22 the liberalization of political institutions, following the regime's demise; and then, the implementation of an unprecedented overhaul of the Brazilian healthcare system throughout the 1990s (Bresser-Pereira, 1998: 253 ss) -brought within state institutions an influx of administrators from the Women's movement, the Hygienist movement, and other social movements.
As I have pointed out before, implementation of non-criminal abortion programs has coincided with the creation of the Unified Health System.This reform ushered in a form of public management inspired by neo-managerial techniques and neoliberal programs, 23 and this ideological orientation has had some lasting incidences on the definition of the special healthcare programs directed at women that were implemented in the late 1980s and on non-criminal abortion programs in particular.These special programs share one feature.Breaking with the highly hierarchical organization which had prevailed until then in physician-patient relations, they all pursue an ideal of 21 In particular the Integral Care for Women's Health Program (Programa de Assistencia Integral à saúde da Mulher, PAISM) represents the first medical approach to the issue of abortion, though it was only a minor dimension of the program, linked to the larger issue unwanted pregnancy (on PAISM, see, in particular, Osis, 1998).The two technical norms issued by the Ministry of Health (Ministério da Saúde,  1999, 2005) on non-criminal both make reference to the objectives set by the PAISM. 22The period of abertura (1974-1985) corresponds to the liberalization of the military regime.The dictatorship itself began in 1964 and ended in 1985. 23There is a vast literature on the impact of new public management on the managerial reform of the Brazilian healthcare system (see, for instance, Bresser-Pereira, 2008).To the extent that the importation of neo-managerial techniques and neoliberal programs serves republican principles, Carlos Bresser-Pereira has proposed to label this kind of reform of the state a "social-liberal" program (Bresser- Pereira, 1998).This question is beyond the purpose of this paper, but it is important to make a distinction between two different things: a social-liberal compromise between two types of justification; and a typically liberal course of action justified by social considerations.In the case of the reform of the Brazilian healthcare system, it is clearly the latter that applies.attachments and emotions stirred by the prospect of abortion. 27Even though health professionals are often extremely sensitive to their patient's history (and to her way of telling her story), the requirements of the procedure tend to subordinate the concern for more personal attachments. 28Failure to adopt the impersonal attitude required by the procedure is treated as a form of deviance, sometimes resulting in the inadmissibility and rejection of the patient's demand, though more often than not it simply leads health professionals to re-qualify it.The patient is asked to rephrase her determination, her fears, and the ambiguity of her motivations, in a pre-established, highly standardized format.This format is quite objectively imposed by the clinical forms and juridical documents she is asked to fill; the ritualized succession of preliminary interviews with the very same people who are habilitated to grant or reject her demand; and the fact that her choice cannot be justified by her own motivations, but only by the general circumstances -rape or risk of death -stipulated in the law.Presumably, women who apply for elective abortion after they were raped or because they might die cannot comply with all these requirements as if they were mere formalities.Here, formalities are formidable constraints. 29e 2005 Technical Norm of Humanized Care for Abortion is a good example of such constraints.The Norm includes among other things a script for preliminary interviews with the patient.It recommends that doctors should "not be judgmental"; instead they should adopt a "therapeutic attitude", i.e. "the capacity to listen without prejudice or imposition of values".Their motto should be "hospitality" (acolhimento), i.e. an attitude of "listening, recognition and acceptation of differences", as well as an attitude of "respect for the right to choose" (MS, 2005: 17-18).Moreover, the Norm reaffirms the importance of alleviating the patient's suffering.It renders mandatory the administration of anesthetics and analgesic drug.It should be noted that it is still common practice in many Brazilian hospitals to tyrannize women who turn up after a botched abortion by treating them only after they have lost a lot of blood or by operating on them without anesthetics (Soares, 2003: 401); this is to say that the Norm formalizes a therapeutic attitude that does not go without saying.
There is more remarkable still for this discussion.The Norm recommends that patients should be referred to a family planning program after their operation to learn about contraception, sexual protection and reproductive autonomy.This is supposed to  But that is not all.Standard procedure creates a double bind.On the one hand, women are asked to behave as autonomous agents of their own health.On the other hand, enormous limitations are imposed on their right to choose (which must be preapproved, as just said, by a college of health professionals); moreover, their choice is limited to circumstances (rape or risk of death) in which they are supposed to have lost the kind of autonomy that is required by the liberal model of rational individual choice. 33aluation of the patient's need for assistance by an authorized college of health professionals also implies a measurement of women's suffering (conspicuous distress serving as proof of the patient's eligibility).This standardization of suffering is conducive to the fabrication of a pathological stereotype of women victims, to whom abortion is not given as a choice, but as an unfortunate necessity.
Preliminary interviews are similarly ambiguous.Although health professionals often show empathy, solicitude, and sensitivity, strict adherence to protocol tends to dilute such marvelous qualities.I do not want to suggest that this process is nothing but a trying ordeal.However, the positive effect that might be expected from a first contact with caring health professionals is tampered with by the routine investigation, the strict requirements and the intrusive questions that health professionals are supposed to make, in accordance with hospital rules and federal Norms.
To give an example, I will briefly describe the opening scene of the powerful documentary realized by Carla Gallo, O aborto dos outros ("Someone else's abortion").
The film starts with the psychological interview of a very young teenager applying for non-criminal abortion after she was raped.The patient is visibly traumatized.The psychologist interviewing her is extremely humane.Nonetheless the spectator cannot withhold a feeling of uneasiness.The patient's deaf voice is immediately translated in the psychologist's manuscript notes.Her writing accumulates rapidly on a bundle of information sheets that will subsequently be filed in the patient's medical record.The fortitude displayed by the young girl is impressive and yet disturbing.She endures her interrogation and retells her aggression impassively.
One of the psychologists that I have interviewed says the following about preliminary evaluations: The first contact is difficult… all this process they have to go through: coming here, telling their story, reliving all their pain, every time they tell their story… so those health professionals who devote themselves to the care of women.But most importantly, exacting requirements and trying preliminary interviews make non-criminal abortion services an inhospitable environment for the more familiar attachments and intimate experiences brought in by a choice as personal as that of abortion.
Two things, at least, are needed to remedy this situation.One, how a patient frames her choice should not be subordinated to justifications imposed by others or to the only ideal of individual autonomy.By definition, the right to choose is spurious if the patient can only express her choice based on somebody else's justifications.
Second, unnecessary restrictions and extravagant requirements should be dropped altogether.Instead, more emphasis ought to be put on care giving.Familiar attachments should be accommodated, and benevolence for the patient's intimate experiences and emotions rewarded.Of course, a balance would have to be found between the benefits of a close patient-physician relationship and the professional distance necessary to medical practice.But health professionals are already versed in this art of composition.Improving the current situation is only a matter of making it less difficult for them to show their qualities, by removing some of the procedural constraints smothering them.
These two fairly simple steps would make good starting points for further progress on the road toward securing women's right to choose, in Brazil.Making sure that this right is implemented in a safe and welcoming environment should not be left out as a technicality.Campaigning for reproductive rights is crucial, but it is no less urgent to reflect on the conditions of their actual exercise.

34 MATTHIEU DE CASTELBAJAC Matthieu
de Castelbajac is a Ph.D. candidate in sociology at the Ecole des Hautes Etudes en Sciences Sociales (EHESS, Paris).His doctoral thesis is a comparison of territory claims in France and Brazil made by groups usually described, in a liberal grammar, as "minorities".He continues working on non-criminal abortion in Brazil,