When criminal law hinders public health emergency responses

Abstract

At the height of the COVID-19 pandemic, maternal mortality in Brazil nearly doubled. Between 2019 and 2021, the maternal mortality ratio in the country went from 59.1 deaths for every 100,000 live births to 117.4 deaths for every 100,000 live births.¹ This is a multicausal and complex issue involving biomedical factors as well as class and race-related social determinants that shape the low-quality and unequal access to prenatal and obstetric care in Brazil. On one hand, it is well documented that pregnant women are more likely to develop severe cases of COVID-19, especially if other medical conditions coexist.² On the other hand, it is also known that, in the first months of the pandemic, one in four Brazilian pregnant women who died from COVID-19 did not have access to an intensive care unit despite desperately needing it.³ Multiple studies have shown that COVID-19-related maternal mortality risks were much higher for Black women and for women living in rural areas or away from urban centers in Brazil.⁴

Even amid the uncertainties at the start of the pandemic, many studies drew attention to pregnancy termination or early delivery as part of the therapeutic measures to be considered for pregnant women severely ill from COVID-19.⁵ Such guidance was somewhat reflected in some Brazilian protocols for the clinical management of pregnant people with COVID-19, which acknowledged that delivery and pregnancy termination decisions should be based on gestational age, maternal condition and fetal stability.⁶ From a bioethical perspective, these biomedical criteria must be based on reproductive freedom, which means that women's autonomy is central to any decision made. The necessary legal framework was also in place: abortion in case of risk to life is recognized as a ground for legal abortion in Brazil since 1940. Additionally, several studies carried out since the early 2000s with doctors and medical students have shown that abortion in the event of life-threatening conditions is the best known and least rejected legal abortion ground among these professionals.⁷

Legal abortion should have been an option for pregnant Brazilian women infected with COVID-19 and severely ill, but it wasn't. In the interviews we conducted with family members of 25 Brazilian pregnant or postpartum women who died of COVID-19 between 2020 and 2021,⁸ it was clear that the few conversations about pregnancy termination as a therapeutic option were deeply impacted by stigma. It was difficult for pregnant women, their families, and medical professionals alike to understand and talk about abortion as a legitimate health need that could potentially save women's lives. Even when it was openly stated as a possibility, pregnancy termination was shrouded by the apprehension of something that can be considered morally reprehensible and often put off for the sake of pregnancy development, under the moral argument of “saving the two lives.” Some families pleaded with doctors to prioritize the women's lives, whom they felt were being treated as “a pregnant belly, not a person.”⁹

It was not a surprise that legal abortion in case of risk to life was not put into practice in Brazil during the COVID-19 crisis. This is a problem that long predates the pandemic. It is estimated that between 25% and 40% of maternal deaths in Brazil are indirect, that is, deaths resulting from a disease that was aggravated by the pregnancy. Researchers and activists wonder how many of these cases may have been of women who were not given the possibility of terminating their pregnancy and, consequently, preventing death.¹⁰ Why is that? Because doctors are the ones in charge of defining how big the health risk should be to allow a pregnant and sick person to have access to a legal abortion. In a society in which the priority is carrying the pregnancy to term, and not pregnant people, the risks to their lives are never deemed too big.

Prioritizing a pregnancy over the life of the pregnant person is a feature of the moral economy of abortion in Brazil, as well as in several countries. It is deeply rooted in health and legal practices, and it has devastating consequences not just for pregnant women seeking an abortion, but for all pregnant women and their families, in particular when a woman already has children. From a reproductive justice perspective, prioritizing the pregnancy makes pregnancy and childbirth experiences that expose women to unjust harms, such as having their health needs ignored, their autonomy disrespected, their rights violated. All in the name of continuing a pregnancy, which, regardless of whether the pregnant woman wanted it or not, or even if it is medically feasible or not, can be used as a justification for decisions and practices that put her life at risk.

We can't say that pregnant women who died of COVID-19 would be alive if abortion were decriminalized in Brazil or other countries with similar maternal mortality rates during the pandemic, or more simply, if abortion in case of risk to life was treated as a health need and made readily available. But we can say that abortion criminalization has definitely made them more vulnerable and unjustly increased their exposure to death.