O Judiciário e o aborto: como os juízes devem lidar com o desacordo moral razoável no conflito entre direitos fundamentais?

Abstract

Many have observed the process of expansion of the Judiciary as a real withdrawal of the people representatives in the construction of the meaning of the Constitution, preventing them from giving a democratic interpretation to the constitutional text. Nevertheless, an adequate view of reality indicates that the courts have a very limited power by social and political factors. However, it is undeniable that the function of reviewing the acts of other political instances raises important issues about who has the last word on the substance and meaning of constitutional norms, especially in those cases where there is a relevant moral divergence in which citizens cannot solve or ignore in a simple way, even through a more intense deliberative effort, the so-called reasonable moral disagreements. Abortion is one of those cases of disagreement. In Brazilian law, doctrine usually analyzes the abortion debate quite unilaterally, ignoring its complexity and its polyhedral facet. The aim of this paper is to establish a broader and more expanded view of the issue by launching a coherent and holistic analysis of legal, moral and political arguments for which courts and especially the Constitutional Court can adequately address this reasonable moral disagreement and contribute to the public debate about it. Therefore, the approach will be focused on the pretension of justice that the norms of fundamental rights have and also on the sociopolitical context or arrangement in which we are inserted. In the end, after analyzing and advancing in several relevant theoretical issues, the conclusion will be that the Judiciary effectively has the possibility of recognizing the unconstitutionality of an abortion policy focused solely on criminalization, even if this declaration of incompatibility is accompanied by a weak model of judicial review