By Matthew Cullinan Hoffman

RIO VERDE, Brazil, April 23, 2008 ( – A judge in the state of Rio Verde, Brazil, has ruled that the federal penal code allowing abortions in cases of rape is unconstitutional, according to local media reports.

Judge Levine Raja Gabaglia Artiaga, of the fourth circuit criminal court of Rio Verde, stated in his ruling that permission to do such abortions injures “a good with greater protection in the constitution, stemming from natural right itself.”

The Brazilian Constitution states that it “guarantees to Brazilians and to foreign residents of the Nation the inviolability of the right to life.”  Article 28 of the Brazilian penal code applies criminal penalties for all abortions except those for children conceived by rape.

Gabaglia observed, however, that the rape exception in the penal code effectively decriminalizes all abortions, because it does not require that the crime be proven in a court of law.  “The effects of the condemnatory penal sentence cannot be foreseen.  It is not possible to have certainty about the materiality nor the author of the crime,” he wrote.

However, Judge Gabaglia simultaneously claimed in his ruling that the right to life could be forfeited if another equal or higher good was at stake.

For unexplained reasons, Gabaglia claimed that the hypothetical case of a minor under the age of 14 impregnated by rape meets such a standard, while cases of rape after the age of 14 does not.

According to Brazilian anti-abortion activist Julio Severo, the case will probably be reviewed by federal judges who will rule on the validity of Gabaglia’s decision.