Abortion: the Portuguese Case

Abstract

Abstract

Abortion was completely illegal in Portugal until 1984. Illegal abortion provision was a matter of silence until then and treated as a “black market” issue rather than as a health issue. The first attempts to change the abortion law began in 1982 after two trials and a national campaign for legal abortion and contraception. In 1984, the law was changed and abortion became legal on four grounds: risk to the woman's life, risk to her physical or mental health, fetal malformation and pregnancy resulting from rape. At the beginning of the 1990s, the Family Planning Association (APF), some women's organisations, trade unions, health professional associations and other NGOs came together to form the Right to Choose Platform. In 1993 a Report on the Abortion Situation in Portugal was presented to the Parliament and Ministries of Health and Justice, followed by public debates. In 1998 the law was changed to allow existing grounds to be applied beyond 12 weeks of pregnancy but bills and a referendum to make abortion available on request to 12 weeks of pregnancy were lost by a tiny margin twice in this period. At the end of 2001 the biggest trial on illegal abortion started in Maia, a small town in the north of the country, which had an immediate and enormous impact on public opinion. An increasing number of public opinion-makers, some prestigious health professionals and even the President of the Republic have recently declared that the law should be changed. The election of a right-wing parliamentary majority in March 2002, however, means that abortion law reform will again be postponed.

Résumé

Avant 1984, l'avortement était totalement illégal au Portugal. Les avortements clandestins étaient passés sous silence et considérés comme relevant du$\ll$marchénoir $\gg$ plutôt que du domaine de la santé. Les premiers efforts pour changer la législation ont commencé en 1982 après deux procès et une campagne nationale en faveur de la lègalisation de l'avortement et la contraception. En 1984, la loi a été modifiée; l'avortement est devenu légal pour quatre motifs: risque pour la vie de la femme, risque pour sa santé physique ou mentale, malformation fœtale et grossesse résultant d'un viol. Au début des années 90, l'Association du planning familial, quelques organisations féminines, des syndicats, des associations de professionnels de la santéet d'autres ONG ont formé la Plate-forme pour le droit de choisir. En 1993, un rapport sur l'avortement au Portugal présenté au Parlement et aux Ministères de la santé et de la justice a suscité un débat public. La loi a été amendée pour permettre aux motifs actuels de s'appliquer au-delà des 12 semaines de grossesse, mais des projets de loi et un référendum pour rendre l'avortement disponible sur demande jusqu'à la douzième semaine ont échoué par deux fois à une faible majorité. Fin 2001, le plus grand procès sur l'avortement clandestin s'est ouvert à Maia, village au nord du pays, et a eu immédiatement un impact énorme sur l'opinion. Un nombre croissant de personnalités influentes, des médecins prestigieux et même le Président de la République ont récemment déclaré que la loi devait être changée. Beaucoup dépendra des prochaines élections en 2002.

Resumen

Hasta 1984, el aborto era completamente ilegal en Portugal. Era un tema que se mantenı́a en silencio y que se trataba como una especie de contrabando en lugar de una cuestión de la salud. Se iniciaron los primeros intentos de cambiar la ley de aborto en 1982 después de dos juicios y una campaña nacional a favor de la anticoncepción y el aborto legal. En 1984 se legalizó el aborto por cuatro causas: riesgo de vida de la mujer, riesgo de la salud fı́sica o mental de la mujer, malformación fetal y embarazo producto de una violación. A comienzos de los años 90, se juntaron la Asociación de Planificación Familiar, algunas organizaciones de mujeres, sindicatos, asociaciones de profesionales de la salud y ONG para formar la Plataforma para el Derecho a Decidir. En 1993 la entrega de un Informe sobre la Situación del Aborto en Portugal al Parlamento y a los Ministerios de Salud y Justicia fue seguido por debates públicos, y se cambióla ley para extender a más de 12 semanas de embarazo el perı́odo en el cual se permite el aborto por las causas ya establecidas. Sin embargo, en dos ocasiones fueron derrotados por pequeños porcentajes proyectos de ley y un referéndum que buscaban legalizar el aborto por petición durante las primeras 12 semanas de embarazo. A fines de 2001, en Maia, una pequeña aldea en el norte del paı́s, comenzó el juicio más grande por aborto ilegal, el cual tuvo un impacto enorme e inmediato en la opinión pública. Un número cada vez mayor de personajes influyentes, incluido algunos profesionales de la salud prestigiosos y hasta el Presidente de la República, han declarado últimamente que se debe cambiar la ley. Mucho depende de las elecciones próximas en 2002.

Key Words:

• clandestine and unsafe abortion
• abortion law and policy
• Portugal

Portugal is one of the countries in Europe with the most restrictive legislation on abortion. Until 1984, abortion was completely illegal under the 1852 Penal Code [1]. However, illegal abortion provision always was and still is widespread. The story of the nurse who was convicted in January 2002 in a trial in Maia, a small village in the north of the country, is a typical example of those who carry out clandestine abortions: there is a room in a flat or a backyard where abortions are performed (in this case she was doing about 500 abortions a year). They are also carried out in private clinics, which are not legally registered or controlled but which are usually expensive, costing anything from £300–1000, depending on the conditions and number of weeks of pregnancy. There is usually no emotional or psychological support, medical follow-up or guarantee of quality [2][3].

Another increasingly common way for women to have an abortion is to use misoprostol, a prostaglandin drug that can easily be bought over the counter in pharmacies. ¹ In these cases, the woman goes through the process of abortion at home, often alone. Many times, because women do not know the correct dosage to use, the abortion is incomplete and the woman must seek medical care to evacuate the uterus and to prevent infection [4].

Some years ago, legal abortion clinics in neighbouring Spain started to advertise their services through the Portuguese newspapers. Since then, more and more women (probably some thousands per year) go to Spain where they can find legal, safe and less expensive abortions. The Spanish law is similar to the Portuguese. However, a well established network of legal private clinics, and a stronger feminist movement mean that the majority of abortions are legally performed on the grounds of protecting the mental health of the woman and preventing psychological problems.

Figures on abortion in Portugal are difficult to obtain because they are still mostly clandestine. In 1999, Evert Ketting, a Dutch expert on reproductive health issues, calculated that there were 20,000–40,000 induced abortions each year in Portugal [5], which corresponds to a rate of 0.2–0.4 abortions per live birth.

Background history

In spite of the improvements in women's health generally in recent decades, abortion is still one of the two greatest causes of maternal deaths [6]. From 1980 to 2000, the deaths of 93 women have been recorded from complications of unsafe, illegal abortions. Further, according to Ministry of Health data, some 5000 women are attended each year in the public hospitals due to incomplete abortions and other post-abortion complications [7].

This situation, and the double bind it creates for women, is not new; it has lasted throughout the years of dictatorship in Portugal, as well as the years since 25 April 1974 under a democratic regime. Those with political power, those in the justice system and even the Catholic Church appear to prefer to ignore the situation, accepting the fact of a high number of illegal abortions rather than initiate repressive activity that might create a movement to try to change the law in response.

Thus, until the last 20 years, abortion was a matter of silence in Portugal. From time to time, due to anonymous reports to the police, some cases came to trial and some people, usually nurses or midwives, occasionally a doctor were convicted [8]. These cases were mostly not of interest to the media or reported by them, nor did they have a significant impact on public opinion or illegal abortion provision itself. In fact, it can be said that abortion was always treated as a “black market” issue rather than as a health issue.

Gradual changes in the abortion law from 1984

The first attempts to change the abortion law happened in 1982 and 1983 after two famous trials and a national campaign for legal abortion and contraception (CNAC). The two trials occurred in 1979: a journalist responsible for a TV programme on illegal abortion was prosecuted for “moral outrage”. The second trial was of a young student nurse who was accused of having had an abortion. Both cases were discharged. The campaign against the prosecutions was organised by several feminist organisations that organised the CNAC. Public street demonstrations and other activities were held in this campaign [2][8][9].

In 1984 the law was changed and abortion became legal on four grounds: risk to the woman's life at any point during the pregnancy, and up to 12 weeks of pregnancy in cases of risk to the woman's physical or mental health, fetal malformation and pregnancy resulting from rape (Lei 6/84). Abortion on request, or for socio-economic or psychological reasons, which are the most frequent reasons why women seek an abortion, were left outside the law.

From 1984 to the end of the 1980s, no social activism was visible on this issue. The conservative governments that ruled the country in those times were not interested in discussing abortion due to fear of conflict with the Catholic Church. They left it to the hospitals and medical profession to interpret the law, with the result that it was interpreted in the most restrictive way. Many hospitals did not perform legal abortions because of conscientious objection, and the ones that did perform legal abortions only did them in cases of extreme ill-health of the woman or condition of the fetus. The grounds of mental health problems were understood at the time only as the existence of severe mental illness. Even drug addiction and HIV infection were not considered sufficient grounds for a legal abortion [10].

In the beginning of the 1990s, several organisations, including the APF, some women's organisations, trade unions, health professional associations and other NGOs came together to form a Platform that was later named Direito de Optar (Right to Choose Platform). The activities of this Platform started with several research projects and public activities. APF has had a central role in this Platform.

The first research done by APF in 1991–1992 showed that legal abortions were rare in the public health system: from 1984 to 1991 only about 50 legal abortions per year were performed in the public hospitals. These figures increased in 1992–1993 to about 140 per year [11].

In 1993 the report Situação da Interrupção Voluntária de Gravidez (Report on the Abortion Situation in Portugal) was presented to the Parliament, and the Ministries of Health and Justice. In 1994 and 1996 public debates on abortion were also promoted by the Platform. In 1994, in the context of a comprehensive revision of the Penal Code, the time limit for abortions resulting from rape and other “crimes against sexual self-determination” was changed from 12 to 16 weeks of pregnancy. Then, in 1997, the time limit for abortion in cases of fetal malformation was changed from 12 to 24 weeks of pregnancy. These changes resulted directly from the advocacy work done by pro-choice groups and in the latter case also by the medical groups promoting greater use of antenatal screening, which was prevented by the lower time limit in the 1984 law.

In 1995 there was a political change in Portugal with the victory of the Socialist Party and the establishment of a leftist majority in parliament. As a consequence there were better conditions in which to approach the problem of abortion again. At the end of 1996, two bills were tabled in parliament, one of them from the Communist Party and the other from the Socialist Youth, both proposing abortion on request up to 12 weeks of pregnancy. In spite of the fact that a majority of the Socialist Parliamentarians Group were in favour of both bills, the Socialist Secretary General and Prime Minister António Guterres lobbied the party to vote against them. In 1997, this round of attempts to change the law through a bill that would have permitted abortion at the woman's request in the first 12 weeks of pregnancy was defeated by only one vote [12].

After 1997, the Ministry of Health created regulations for carrying out legal abortion in cases of fetal abnormality, but it is widely acknowledged by health professionals that hospitals continue to interpret the law in very restrictive ways. In 1998 there were 305 legal abortions in public hospitals, an increase that was due to improvements in antenatal screening for fetal abnormality. Thus, of the 305 legal abortions in 1998, 199 were on grounds of fetal abnormality, 64 for risk to the woman's health and 13 due to crimes against sexual self-determination [13].

The matter was raised again in parliament in 1998 with some changes to the previously defeated Socialist Youth bill – the amended bill called for abortion on request up to ten rather than 12 weeks of pregnancy and for abortion on grounds of the woman's physical or mental health to be raised from 12 to 16 weeks of pregnancy. This bill was passed, but the Prime Minister and the leader of the main opposition party (both devout Catholics) decided to bypass parliamentary sovereignty and submit the question of abortion on request to a national referendum.

The referendum took place on 26 June 1998. Only 31.8% of potential voters turned out to vote. The No vote (rejecting abortion on request) was 50.5% of the votes and the Yes vote 49.5%. In spite of the fact that a referendum is not valid in law unless more than 50% of the electors have participated in the ballot, the parliament decided not to proceed with the bill it had passed [14].

This was an enormous defeat for the pro-choice movement. Legal abortion for most cases of abortion was once more postponed and silenced. On the other hand, the positive effects of the referendum included a wide national debate on abortion and on sexual and reproductive health and rights, which led to some good developments in school sex education and similar programmes [15].

A mass trial on abortion hits the headlines

At the end of 2001 the biggest trial on illegal abortion started in Maia, following an anonymous report and a police investigation. Immediately, this event had an enormous impact on public opinion.

The outcome of the trial in Maia, 18 January 2002

“The mass trial [of 43 defendants including a nurse charged with running an illegal network of chemists, doctors, nurses and taxi drivers, 17 women who were accused of having abortions and others who helped them] was held in a packed marquee at Maia's tennis club, because the town's ordinary courts were not big enough … Most of the women expected to be sentenced today come from the working class districts of Maia, from the backward villages of the Tras Os Montes region in the north, or from the slums of the nearby city of Oporto. All 17 were caught because, lacking money, they gave the nurse who ran the clinic wedding rings, necklaces or earrings [the equivalent of UK£300] as surety while they sought money to pay her.”

“The trial … ended [on 19 January 2002] with a prison sentence for the nurse who ran the clinic, but only one of the women was found guilty.”

“[The nurse] … arrived at court swathed in expensive shawls. Even among the Right to Choose campaigners there has been little sympathy for a woman who kept clients' jewellery as surety. In court she came across as a hard-nosed businesswoman – although the prosecutor admitted she was `a good professional'.”

“[The nurse] was sentenced to eight-and-a-half years in prison. Three of those years were for breaking the notoriously strict abortion laws … The rest were for stealing morphine and other dangerous drugs from a hospital. Six other people who worked with her were given the option of paying fines or serving up to six months in jail. Before handing down the sentences, the panel of three judges said: `We are aware of the political, social and scientific debates surrounding this matter, but must stick to the law.'”

“S … took the stand in Maia on a cold December's afternoon, dressed in jeans and a cheap plastic jacket, and began trembling even before she was asked any questions. Choking on her words and weeping copiously, she described how, as an 18-year-old, she had become pregnant just as her relationship with a violent boyfriend was falling apart and after their two-year-old daughter was diagnosed with asthma and diabetes. `He was violent, drank too much and gambled,' she sobbed. `My daughter was very ill. I was in such a state that I cannot remember how it was done. I was put under an anaesthetic. Everything else is confusion. I wish I hadn't done it.'”

“S … was ordered to pay a small fine or spend four months in prison. The judges could have sentenced [her] to up to three years in prison.”

“Eight women have been given suspended sentences for having abortions [in other court cases] over the past two years. Those caught are almost always poor. The daughters of the middle classes or the rich usually go to the nearby Spanish city of Vigo – or to a well-known doctor with a luxury clinic in Oporto. Money spent there buys not just the silence of the doctor and his staff but ensures that local authorities turn a blind eye. Despite a recent exposé in the Comercio do Porto newspaper, no prosecution has been launched against him. His list of former patients is rumoured to be so explosive that nobody will touch him [16][17].”

The opponents of legal abortion had always declared that the law had to stay as it was – not out of repressive or punitive intentions, but for pedagogical motives [15]. This trial brought clearly into the public arena all the drama of illegal and unsafe abortion in Portugal – the back street conditions, the stories of poor women who had to pay for their abortions with their wedding jewellery, the business side of illegal abortions, the confessions made by frightened women to the police and so on.

The Right to Choose Platform picketed every session of the trial and gained significant prestige for being the only organisation that continued to promote debate on abortion after the 1998 referendum and to promote solidarity with the Maia women.

The court condemned the nurse to eight years in prison (this sentence is longer than that for a conviction for sexual abuse). Six other people who were accused of being part of an abortion network were fined. One of the two women who had confessed to the police was fined and had to pay &z.euro;120.

“People don't agree with the idea that women who have had abortions should be seen as criminals.” [18]

The future: a change in perspective on the horizon

However, the trial did once again re-open public debate on abortion. An increasing number of public opinion-makers, some prestigious health professionals and even the President of the Republic declared that the law should be changed and even that there should be a new referendum.

“We've been waiting for reform for almost 30 years. It's a disgrace.” [19]

Only the future can tell what the consequences of this trial will be for the provision of abortion in Portugal. APF fears that the heavy sentence imposed on the nurse and the possibility of new trials (in Setubal and in Viana do Castelo) may promote a serious retreat in the offer of illegal abortion services in Portugal, which will put the health of Portuguese women at greater risk: higher fees, more self-induced abortions, more later abortions, more abortion-related morbidity and even mortality may be the most immediate result.

As this paper goes to press, there are new political changes in Portugal – on 17 March 2002 legislative elections produced a rightwing majority in parliament. The two parties holding this majority are opposed to any new discussions on broadening the abortion law. Once again, the question of illegal abortion will be postponed. The immediate future will continue to pose difficult challenges for the pro-choice movement in Portugal.

Notes

1 The brand name of this drug is Cytotec and officially it is indicated for prevention and treatment of gastric ulcers.