Against Her Motherly Nature: Prosecuting Abortion and Infanticide in Turn-of-the-Century Rio de Janeiro, Brazil

At the turn-of-the-twentieth century, the Brazilian state increased its scrutiny of fertility control. After the abolition of slavery in 1888, the implementation of democracy in 1889, and the passage of the 1890 Penal Code, women’s reproduction became central to state modernization. In Rio de Janeiro, the state investigated and prosecuted both abortion and infanticide at higher rates than the nineteenth century. Despite this increase, most women avoided imprisonment. This gap between law and practice differed for women implicated in abortion as opposed to those suspected of infanticide. With abortion, the prosecution most often charged the abortion provider and not the woman. With infanticide, women were prosecuted, but juries most often acquitted them of all charges.

But women’s ability to avoid legal condemnation actually reinforced state efforts to control women’s bodies. In both abortion and infanticide trials, the law relied on medical ideas about post-partum hysteria to demonstrate that women had acted in a “hysterical” state of mind. Thus, jurists argued that women practiced fertility control for irrational reasons rather than rational efforts to control their fertility. By dismissing these cases, the judicial system perpetuated the assumption that all women were inherently maternal but could not make sound decisions about their bodies. In a contested period in which women’s honor was shifting from familial to state control, many women walked free from punishment. But the state’s inability to uphold laws criminalizing fertility control still cemented patriarchal control as this failure rested on the idea that women were incapable of autonomous thought.