Before legislating on the issue, Public Hearings were held to allow citizens and stakeholders to testify and present information on the termination of anencephalic fetuses. It is unclear if the hearings had any effect on policy making.
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Problems and Purpose
Constitutional Courts are affected by the political environment that surrounds them (Friedman, 2009) and seek to be responsive to what circulates in the enlarged public sphere.
In this context, the Public Hearings in the Federal Supreme Court (STF) emerge as an essential mechanism of socio-state interface aiming, on the one hand, that the members of the court widen their horizons of understanding, through the diverse perspectives exposed at the hearing; and, on the other hand, that society itself becomes more aware of the matter under discussion.
More specifically, the Public Hearing has been convened by Minister Marco Aurelio with the purpose of collecting information about the termination of anencephalic fetuses, since the discussion on this subject goes beyond the limits of legal knowledge.
The success of this objective can be threatened, in particular, by two factors: firstly, by the disinterest of the ministers in relation to the arguments presented at the hearing, which can be verified by reading their respective votes; secondly, the homogeneity of the positions of the participants, a fact that would not allow the ministers to have access to the different perspectives that exist in relation to the analyzed matter.
Background History and Context
The Public Hearing on the interruption of pregnancy of anencephalic fetuses was convened in the course of the trial of ADPF No. 54, filed by the National Confederation of Workers in Health.
The objects of questioning of said ADPF were the arts. 124, 126, caput, and 128, I and II, all of the Penal Code, which deal with the crime of abortion. The purpose of the action was to remove a certain interpretation of these devices that made them violators of fundamental precepts. In a word, the purpose was to seek an interpretation of the said rules according to the constitution.
More clearly, the interpretation according to the constitution of such devices rule out the crime of abortion setting where there was a delivery of therapeutic advance in the event of fetuses with anencephaly, duly certified by authorized doctor.
According to the National Confederation of Health Workers, in the case of an anencephalic fetus, there is no extra-uterine potentiality of life and, therefore, the interruption of pregnancy in these cases can not be considered a crime of abortion, whose protected legal right is, the life of the unborn child. More than that, obliging the pregnant woman to bear the pregnancy until the end would offend her human dignity, her autonomy of the will and her health, rights enshrined in the Federal Constitution.
Received and regularly processed the initial petition, Minister Marco Aurélio deferred, in a monocratic decision, the injunction in favor of Cnts, determining the overrun of the unresolved cases and decisions that dealt with the matter, as well as recognizing the constitutional right of pregnant women. to undergo the operation of interruption of pregnancy, based on a medical report attesting the anomaly that struck the fetus.
Following this, in a dispatch of July 31, 2008, Minister Relator Marco Aurelio convened the Public Hearing, which was held on August 26 and 28 and September 4 and 16, 2008. We would like to emphasize that this was, until then, the first and only public hearing convened to address this specific issue.
Organizing, Supporting, and Funding Entities
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Participant Recruitment and Selection
In general, there are three modalities of participation: (1) as part of the audience without any manifestation; (2) sending suggestions; and (3) as an exhibitor at the hearing, in which case prior registration and approval by the rapporteur is required. In the first case, the limit for participation is the capacity of the place of accomplishment  and the places are occupied in order of arrival, respecting the reservation to the exhibitors and the press. In the second case, it is accepted that any person or entity, regardless of registration, forward documents useful to clarify the issues to be debated in the AP, by print or electronic means. The third and most important case concerns the PA exhibitors, which are indicated by the parties to the process, by state bodies and entities and civil society entities or by interested parties that require their participation (qualified experts).
In total, 25 people participated as exhibitors of the Public Hearing about the termination of pregnancy in the case of an anencephalic fetus, among them, representatives of the Legislative Branch of the Union, social movements, religious congregations and "experts", speaking in "proper name" based on their particular experiences. As can be seen, at this hearing, the Minister-Rapporteur sought testimony not only from scientists, but also from representatives of society and religious groups.Methods and Tools Used
Methods and Tools Used
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Deliberation, Decisions, and Public Interaction
The format of the hearings makes them more like an argument than a debate proper. The public hearing under analysis generally followed this same line, but with a particularity: after the presentation of each of the participants, the Minister Rapporteur Marco Aurélio opened the opportunity for the prosecutor of the arguendo (Cnts) and the Public Prosecutor, in the person of the Deputy Attorney of the Republic, to request clarification on any specific point. It is frightening that it was not allowed to refute or to establish a debate with the exhibitor, but only to ask for clarifications.
In addition, there has been some indirect exchange of ideas and exchange of information, since the participants involved already seem to know the main arguments of each other and seek to reinforce or question them with the presentation of other arguments and evidences.
As an example, we cite the case of the girl Marcela, who was supposedly an anencephalic fetus who lived after childbirth for 1 year and 8 months. Much of the discussion at the hearing centered around this specific case: basically, the exhibitors sought to affirm or refute the anencephaly of the child. It should also be noted that of the 25 participants, 12 made explicit references to the presentations of the other exhibitors.
Influence, Outcomes, and Effects
In relation to the diversity of positions of exhibitors of the Public Hearing, it was verified that this objective was not reached. The subject under consideration allowed two opposing positions: 1) In favor of the ADPF, which would imply allowing the interruption of pregnancy in the case of anencephalic fetuses; 2) In favor of the dismissal of the ADPF, that is, of maintaining the criminalization of the interruption of pregnancy even in the cases of anencephalic fetuses.
Analyzing the arguments presented by the exhibitors, it is noted that 15 defended the first position and only 8 argued in favor of the second, almost half, which indicates that the selection stage did not observe the plurality of positions. It was curious to note that the largest number of exhibitors were in line with the position of the Minister Relator, who selected them.
On the other hand, with regard to the influence that the Public Hearing exerted on the ministers, it is difficult to specify how much the arguments presented by the exhibitors were decisive for the construction of the votes.
However, throughout the votes, it was found that several data submitted by the exhibitors were expressly mentioned, mainly, in the vote of the Minister Relator. In addition, it is relevant to note that Minister Marco Aurelio summed up the arguments of the speakers at the hearing in the judgment report.
Analysis and Lessons Learned
The purpose of the Public Hearing, as stated above, could be threatened by two factors: first, by the disinterest of the ministers in relation to the arguments presented at the hearing; second, by the homogeneity of the participants' positions. Although it was found that the ministers used the arguments presented by the exhibitors, it was found that there was an imbalance of positions in the audience.
As already mentioned, of the 25 exhibitors, 15 were favorable to the ADPF and only 8 were against, which affects the diversity of positions. In view of this, it would be desirable to have a prior assessment of the submissions of the participants to the hearing, in order to preserve a balance between the different perspectives on the object to be analyzed.
Brazilian Public Hearings
Lead image: Associated Press https://goo.gl/wVXqfw