The abortion jurisprudence in Brazil: An analysis of ADPF 54 from feminist equality-based perspectives

Abstract

Abstract Building on the feminist legal theory-driven analysis of equality-based approaches to voluntary abortion, this article offers a critical reading of the Brazilian Supreme Court decision on ADPF 54, the constitutional lawsuit that challenged the constitutionality of the application of the legislation that prohibits abortion in cases of fetal anencephaly. The article first presents the arguments and then offers feminist equality-based counterpoints that bring some vulnerabilities of the decision to the forefront. The article argues that, from the perspectives adopted, the arguments presented by the justices in ADPF 54 do not disrupt the logic that underlies the abortion prohibition norm and end up legitimizing it. Second, the principles used can be viewed skeptically. By missing inequality issues that permeate reproduction, the principles obscure power relations and as such, become potential tools for furthering inequalities. We conclude the article by delineating how, despite being cited only timidly as a precedent, ADPF 54 still resonates in other minor cases put before the Brazilian Supreme Court, imbuing them with the same set of problems. Having in mind the vulnerabilities of the arguments, the article makes a tentative normative assessment on how the use of a substantive equality principle as an analytical tool and guide for interpretation could mitigate the problems and offer responses with emancipatory potential.