Legal arguments against criminalization

Prior to 1984, the law forbade abortion without exception. At the same time, however, abortion up till ten or eleven weeks of pregnancy was generally accepted and doctors, nurses and midwives who performed illegal, but medically safe abortion could do so without fear of prosecution.
In 1984, the Portuguese Parliament legalized abortion in certain, strictly specified cases. First trimester abortion, up till the tenth or eleventh week of pregnancy, was legal if there are physical or mental health reasons (restrictively interpreted as foetal malformation or danger to the life or health of the woman) to terminate the pregnancy, or in the case of rape. In all other cases abortion wass against the law under articles 140-142 of the Criminal Code. Since 2007 abortion is legal till the first 10 weeks of pregnancy.

On the 4th February 1998 the Portuguese Parliament by a vote of 116-107 and 13 abstentions passed a bill to legalize abortion on request up till ten weeks of pregnancy. This bill, however, has not yet been turned into law because the Portuguese Prime Minister of that time decided to call a referendum about the penalization of abortion. Without the referendum the law would have taken effect in 90 days from its passage in Parliament.

The referendum took place 26th June 1998. Only 31,94 percent of the persons entitled to vote appeared in the voting box. This means that the referendum had no binding force as Article 115, 11 of the Portuguese Constitutional Court states:
“A referendum shall only have binding force where the number of voters is greater than one half of the voters registered in the census.�
The results of the referendum would only have had legal effect if more than 50 per cent of the electors had voted, but the negative result was enough to stop the political process even though opinion polls before the referendum had shown that the majority of the population was for legalizing abortion. We underline that only 16,26 % of the population voted "yes" to the old abortion law; a rather weak ground for prosecuting abortions.

Since a few years the Portuguese government started actively prosecuting doctors, nurses and women having abortions. In 2001 a nurse, Maria do Ceu was convicted to 7 1/2 years of imprisonment for performing illegal (but in her case safe) abortions.

The abortion law of 1984 violates article 64 1, 2a, 3a, of the Portuguese constitution which states:
1. Everyone has the right to have his or her health safeguarded and the duty to defend and foster it.
2. The right to the safeguarding of health shall be met by:
a. A national health service available to all and free of charge to the extent that the economic and social conditions of citizens require;
3. In order to ensure the right to the safeguarding of health, the State has a primary duty:
a. To guarantee the access of all citizens, regardless of their economic circumstances, to both preventive and remedial medical care and rehabilitation.

The public health figures demonstrate clearly that the abortion law of 1984 violates this right to health. The restrictive abortion laws in Portugal result in abortion tourism to Spain or expensive underground abortions in Portugal. Every year, an estimated 20.000 to 40.000 Portuguese women undergo an illegal abortion even though the official abortion rate is only 300.

A central tenet of criminal law theory holds that a law forbidding certain actions, while the personal and public consequences of this prohibition are worse than the consequences of not forbidding these actions, is a law that should not exist. If it exists, it should be abolished as quickly as possible. (this was also the argumentation when the abortion law in Canada was removed from the penal code ) Making an action punishable by law should not provoke various ramifications that are so unjust and far-reaching that the importance of the original by the law envisioned object is lost in comparison.

As is the case in the criminal law of most member countries of the European Council, the Codigo Penal of Portugal acknowledges grounds of justification (rt.35) when the results of prosecuting and punishment of a crime are more damaging to society and private persons than the consequences of not penalizing that "offence". They are particularly valid in the case of voluntary undergoing termination of an unwanted pregnancy or performing, on request, an abortion.

Portugal's anti-abortion laws are beyond the pale of what is normal practice/custom in Europe. In no other country has an abortion provider been convicted in the recent 20 years.

No other Member States make abortion illegal on social economic grounds, except for Ireland, Malta and Poland.

Abortion is legal on social economic grounds until at least 12 weeks in all of the following countries: Albania, Armenia, Austria, Belgium, Bulgaria, Czech Republic, Denmark, Estonia, France, Georgia, Germany, Greece, Hungary, Italy, Kazakhstan, Latvia, Lithuania, Moldova, Netherlands, Norway, Romania, Russia, Slovak Republic, Sweden, Turkey, Ukraine, United Kingdom, Cyprus, Finland, Iceland, Luxembourg, Switzerland (since June 2001)

The great majority of the members of the European Union no longer consider it necessary or appropriate to criminalize abortion services as can be seen in the Report on Sexual and Reproductive Health and Rights (2001/2128 (INI)) which “recommends that, in order to safeguard women's reproductive health and rights, abortion should be made legal, safe and accessible to all� adapted by the European Parliament in 2002.

Reproductive rights are recognized by the following international documents:
1- UN International conference on Population and development, Cairo 1994
“ Reproductive rights embrace certain human rights that are already recognized in national laws, international human rights documents and other relevant consensus documents, The rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing, and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health� (paragraph 7.3 Programme of action)

2- UN fourth World Conference on Women, Beijing 1995
“The human right of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence.� (Paragraph 96, platform of action)

The right to have control over and decide freely and responsibly the number, spacing and timing of their children implies the right to a safe and legal abortion because as already argued and proven before not all unwanted pregnancies can be prevented by using contraceptives. The right to a legal, safe abortion is a human right and should explicitly be recognized as such.

The very existence of the restrictive abortionlaws can have detrimental effects on the life of a woman with an unwanted pregnancy. Despite moral approbation this cannot on its own warrant the application of penal sanctions when consenting adults alone are involved. Furthermore, the restrictions are totally ineffective in protecting the unborn since it did not prevent large numbers of Portuguese women, 20.000 to 40.000 each year to obtain abortions illegally or abroad. And until the abortion referendum of 1998, Portugal refrained from prosecuting women who had undergone abortion and persons who procured or performed abortions. After the referendum, however, police authorities started to register and investigate abortion practices. In 1998-1999 they brought 49 cases before a judge of instruction, which led to 11 abortion trials with 13 defendants, and 8 convictions. And very recently, on July 15th 2003, two other Portuguese nurses have been put into custody on the charge of performing illegal abortions, .

Most European countries, acknowledging the general principles of law and justice involved have legalized abortion on social and economic grounds up till at least 12 weeks.

The great majority of the member States of the Council of Europe no longer consider it necessary or appropriate to criminalize abortion services as can be seen in the Report on Sexual and Reproductive Health and Rights (2001/2128 (INI)) which
“recommends that, in order to safeguard women's reproductive health and rights, abortion should be made legal, safe and accessible to all�,
adapted by the European Parliament in 2002.

In January 2004 pro-choice groups in Portugal gathered 120.000 signatures to call for a new referendum to legalize abortion. Unfortunately the Portuguese government decided to ignore the signature campaign and to deny the Portuguese population their right to have a referendum.