By a vote of 8-to-2, the Supreme Court said forcing women to maintain their pregnancies when their fetuses have been diagnosed with anencephaly creates a risk to their physical and psychological health.
Under current Brazilian law, abortion is legal only in cases of rape or when a mother’s life is threatened by a pregnancy.
“Giving birth means giving life, not death,” said Judge Ayres Britto.
He disputed whether terminating a pregnancy with an anencephalic fetus was really an abortion when the fetus has no reasonable expectation of life outside the womb.
Anencephaly refers to fetuses lacking cranial vaults and cerebral hemispheres. They are doomed to die, often hours or minutes after birth.
“When the womb becomes a small coffin, life goes awry,” Judge Carmen Lucia said.
Roberto Gurgel, Brazil’s attorney-general, argued that a woman should decide whether to give birth to babies that lack brains.
“The therapeutic anticipation of delivery in cases of anencephaly constitutes the exercise of a fundamental right of the mother,” he said.
Attorney Luis Roberto Barroso argued that women’s privacy was a primary issue in their abortion decisions.
“This court has a critical issue at stake: the reproductive rights of women, their right not to be a uterus at the service of society,” he said.
Anti-abortion activists gathered at the gates of the Federal Supreme Court. The Brazilian Catholic Church organized anti-abortion vigils in several cities.
On Wednesday, protesters from several religious orders came to the court to pray, surrounded by images of fetuses and the patron saint of Brazil.
“The anencephalics are living human beings… Society, through its institutions, should foster full respect for their human dignity and their fragile and short lives,” wrote Cardinal Odilo Scherer in an editorial condemning abortion that was published in the media.
The dispute first reached the Supreme Court in 2004, when a judge authorized an abortion in a case of an anencephalic fetus, but his colleagues overturned the decision three months later.
Millions of Brazilian women undergo voluntary abortions in illicit operations that cost the lives of thousands each year, according to the health ministry.
President Dilma Rousseff initially spoke out in favor of more liberalized abortion laws before her 2010 campaign but backed off her own comments under pressure from the Catholic church.