Limites à proteção da vida: uma análise à luz do crime de aborto

Abstract

The criminalization of abortion performed in the first twelve weeks of pregnancy is incompatible with the fundamental precepts guaranteed by the Federal Constitution of 1988. The prevalence of the right to life inherent to the fetus to the detriment of the rights to liberty, equality, health and family planning that belong to pregnant women is unreasonable. Such understanding is fostered by the precedent of ADPF No. 54 and by the decisions made by the Constitutional Courts of Germany, the United States and Portugal. In this sense, ADPF No. 442 calls for the declaration of partial non-receipt of articles 124 and 126 of the Penal Code by the Federal Constitution. As can be seen from the arguments present in both lawsuits and in international trials, the STF’s legitimacy to carry out the constitutionality control of the infraconstitutional law is verified, as well as the lack of proportionality of the penal rule that typifies the abortion practiced in the first trimester of pregnancy.