Ativismo Judicial no Supremo Tribunal Federal em face do crime de aborto

Abstract

The present research aims to understand the phenomenon of judicial activism in the scope of the crime of abortion, according to the legal order of the country. Therefore, using the deductive method, the pertinent bibliography and jurisprudence will be analyzed, preliminary investigating about the typical initial understanding about the conduct, revealed in the public health issue vs. moral issue. It demonstrates the impossibility of understanding abortion under the public policies bias, as well as the undeniable correlation between abortion and morality, consubstantiated in the potential offense to the principle of non-aggression. It analyzes the main philosophical theories that guide the theoretical debate in our country, in order to clarify where personality would begin, and therefore, the immorality of killing. It deals with the relationship between Law and Morals, explaining the legal treatment of conduct in our law. Finally, establishing these premises, discusses how the Supreme Court has been facing the question and whether the action of this can be understood as part of the phenomenon of judicial activism. Through the relevant jurisprudential analysis, it demonstrates the inadmissibility of the activity of the Supreme Court as a positive legislator, since it offends the principle of Separation of Powers, legal certainty and Democracy itself. It suggests a mechanism of repression to such offenses, embodied in the Bill 4.754/2016.