The Fifth Chamber of Public Law of the São Paulo Court of Justice (TJSP) has upheld the decision to fine São Paulo City Council R$24.8 million for failing to comply with a court decision that guaranteed access to legal abortion in the city following the closure of the Vila Nova Cachoeirinha hospital in the northern zone.
The patients should have been referred to other wards in the city, but the procedure was denied in those locations. The fine will be imposed in January 2024 and will be R$50,000 per day.
Mayor Ricardo Nunez’s (MDB) management team asked the court to reduce the amount to R$500 per day, arguing that the amount was disproportionate. City Hall also argued that the lack of full identification of the patients involved in the procedure made their right to defense impossible.
The PSol National Assembly and the São Paulo Public Ministry (MPSP) claim that the fine was increased to the millionaire’s value because the violation lasted for 497 days.
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understand the case
- In the court’s previous decision, City Hall had already forced new patients and patients whose surgeries had been canceled at the Vila Nova Cachoeirinha hospital to be referred for legal abortions in other wards.without imposing restrictions based on gestational age.
- The However, the city health department did not restart the procedure at the Vila Nova Cachoeirinha hospital or guarantee that it would be rescheduled in other wards..
- In early October, Judge Simone Gómez Rodríguez Casoletti of the 9th Fiscal Court rejected an appeal by Mayor Ricardo Núñez’s (MDB) administration.
- City Hall filed a second appeal seeking a suspension of the decision. The City officials claim bias on the part of the magistrate, citing alleged judicial arbitrariness and procedural irregularities..
- It is also claimed that the defense was abandoned because “the minimum elements to confirm the number of days fined” were not presented and “there was no notice from the defendant of the illegal change in the amount charged.”
- The City Hall also argued that it had not failed to comply with the injunction, that it was unenforceable pending a final judgment, and that the fine was unreasonable..
Reporter points out ideological content and denies appeal
Rapporteur Eduardo Plataviera claimed that the complaints presented by the city authorities had a “clear ideological content”. He emphasized that the State Public Defender’s Office (DPE-SP) presented solid evidence of the denial of legal abortion. This right is guaranteed by law regardless of gestational age and is protected by decisions of the Federal Supreme Court (STF).
According to this decision, the refusal may have taken place in hospitals within the municipal network: Hospital da Muller SECONCI-SP, Hospital Fernando Mauro Pires da Rocha, Hospital Vila Nova Cachoeirinha, Hospital Carmino Caricchio Municipal, Hospital Municipal Tide Setubal, Hospital Municipal Mario Degni, etc.
The rapporteur further concluded that City Hall’s assertion that the magistrate was not impartial “reveals the purely emotional and appellate nature of the appellant’s claims.”
Plataviera said that the normative resolutions of the class councils are “hierarchically superior to judicial decisions and federal law on this issue,” referring to the resolutions of the Federal Council of Medicine (CFM) and the regional councils (Clemesp).
The city “maintains a situation that is illegal and does not comply with emergency protections, continues to deny the right to legal abortion, and fails to provide appropriate and prompt referrals to a department that performs abortions when patients, through their physicians, claim that the desired department is not equipped to do so,” he said in the ruling.
Finally, the Rapporteur recognized that the value of the fine was very high and stated that in this sense “the greater harm caused by the municipality to women who are denied their fundamental rights and exposed to a new cycle of institutional and existential violence for ideological purposes is indisputable”.
The big city asked São Paulo City Hall for comment on this decision, but did not receive a response until the publication of this report. The space remains open.
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