A criminalização do aborto no atual cenário político-social brasileiro: uma análise da ADPF nº 442

Abstract

The present monographic paper, through the analysis of the ADPF nº 442, aims to incite debate on the controversial issue of abortion, "a frequent and persistent phenomenon among women of all social classes, racial groups, educational levels and religions," according to the National Abortion Survey - henceforth PNA (2016, p. 653), being the main responsible for the morbidity and mortality of the woman. The subject is undoubtedly controversial, especially because of the vigorous moral and religious appeal that rooted it. However, the secular character of the Brazilian legal system imposes on the national courts the duty to do justice without manichaeism, glimpsing the issue in the light of law and scientific evidence. Given the immense number of opinions about abortion and incalculable positions, the following research question arose: is the abortion criminalization constitutional and presents as a suitable mechanism to prevent the issue? Furthermore, the hypothesis is that abortion advocates as public health, therefore the criminal coercion isn’t appropriated to solve the problem, due to the fact that disrespect women fundamental rights and doesn’t prevent the decrease the rate of abortions in the country. The questioning of the legitimacy of the criminalization of induced and voluntary abortion requires confronting the criminal law with constitutional precepts, which, in order to acquire full meaning from the just, need to be harmonized with each other and with the other norms provided for in the Federal Constitution, being, therefore, mission of the legislator to adapt to the legal theory to the needs of the phatic world. As to the justification of the present research, it is relevant because of the current relevance of the topic, which involves the protection of life, health, dignity and the autonomy of women, who as citizens of rights cannot have mitigated them of dogmas and moral beliefs. Therefore, the research will seek to aggregate data that can contribute to the construction of a more just and egalitarian society, where all citizens, regardless of sex, are absolute holders of the fundamental rights guaranteed by the Federal Constitution of Brazil, focusing on the understanding and explanation the dynamics of social relations.