Abstract
This article aims to contribute to the abortion debate in Brazil, by looking deeply at how the equality principle is being mobilized by pro-decriminalization actors in the specific context of ADPF 442, the lawsuit in which the constitutionality of the abortion restriction up to the 12th week is challenged before the Brazilian Supreme Court. We map and classify the different formulations of equality arguments presented by the claimant and other relevant actors. We then discuss one of the formulations – the formulation that characterizes abortion as a means of group subordination - in light of the legal opportunity structure available in Brazil. We argue that while this argument faces a challenge posed by the narrow formulations of the equality principle in general in Brazil, it also opens up a new window for arguing, for being close in formulation to an important equality case ruled by the Supreme Court – ADPF 186, an affirmative action case.
Highlights
This article aims to contribute to the abortion debate in Brazil, by looking deeply at how the equality principle is being mobilized by pro-decriminalization actors in the specific context of ADPF 442, the lawsuit in which the constitutionality of the abortion restriction up to the 12th week is challenged before the Brazilian Supreme Court
In what regards the limits, we argue that the most common conceptualization of the equality principle in Brazil is not able to deal with cases such as the abortion issue
In view of the results, we lay some comments on the limits and potentials of the formulation of equality as anti-subordination in the case of abortion in view available legal stock in the Brazilian legal opportunity structure, having in mind the existing conceptualizations of the equality principle and the case law established by the courts
Summary
We have mapped three different ways in which the equality principle has been mobilized by the actors: first, to make the argument that the criminalization of abortion leads to discriminatory treatment between women from different backgrounds. To argue that the criminalization of abortion discriminates between men and women, to the extent that it imposes a penalty to women that has no equivalent for men. To advance the argument that abortion criminalization stems from and perpetuates women subordinated status in Brazil
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