Decisões multiníveis na análise dos cenários interpretativos sobre aborto no caso de gestantes com zika vírus na ADI/ADPF nº 5581

Abstract

This dissertation examines multilevel decisions in the analysis of the interpretive scenarios about abortion in case of pregnant women with Zika virus in Direct Action ofUnconstitutionality cumulated with Action of Noncompliance with Fundamental Precept - ADI/ADPF nº 5581. These scenarios are object of ADI/ADPF nº 5581, action based on the argument of necessity and urgency derived from Zika virus epidemy and consequent cases of microcephaly. Among the requests addressed by its initial, it is questioned, in case of a Direct Action of Unconstitutionality, the interpretation according to the Constitution of art. 18 of Federal Law no. 13.301 / 2016 and the declaration of nullity with reduction of the text of art. 18, § 2, of mentioned law. In the context of the Arrangement of NonCompliance with Fundamental Precept, right access must be given to health for the early stimulation of children with microcephaly and other sequels in the central nervous system caused by the Zika virus congenital syndrome and the legalization of abortion for pregnant women who have contracted such a virus. This action is pending before the Federal Supreme Court and, in the analysis of its interpretative scenarios, international and domestic jurisprudence on abortion will be used in the light of Peter Häberle's perspective of comparative law as an interpretation method, in an interconstitutional and multilevel way. Combining this analysis with the understanding of Amartya Sen, contextualizing instrumental liberties with the need for female empowerment within the framework of human development. The dissertation faces the issue that penal law referring to abortion in Brazil lacks real modifications, aiming a plurality of interpretive openness applied to the jurisprudence of the country. It emphasizes that criminal law concerning abortion in Brazil lacks real modifications to achieve social efficacy, but the decriminalization of abortion of pregnant women with Zika virus seems unlikely, in the short term, as shown by the Federal Supreme Court - STF and considerations of its Ministers in previous decisions. The STF is currently attentive to judgments related to corruption in our country, and the last move in ADI / ADPF nº 5581 is dated July 19th, 2017, and this action is concluded for the rapporteur until then, a situation that entails costs to society, such as the lack of necessary public health care, the consequences of state inertia and procedural slowness in resolving this emergency conflict.