The present article seeks to describe the abortion cases under review by the STF and seeks to defend a gender perspective in the court’s most important case, which is still under review and which discusses the unconstitutionality of the criminal code with respect to the crime of abortion. We will present the review of a case that discussed the possibility of therapeutic anticipation of delivery in the case of an anencephalic fetus and the lack of action by the Supreme Court regarding therapeutic anticipation of delivery for women diagnosed with Zika virus given the possibility of fetuses having microcephaly. It is argued that this case must be reviewed from a perspective that promotes equality and equal freedom for women. This focus highlights the importance of argumentation, of feminist interpretive methods and of the “woman question” as an important method for addressing the lack of neutrality of criminal legislation.
In the ADI 4650 case, the STF banned contributions from public and private legal entities to either candidates or political parties. The court ruled that such types of political donations violated the Constitution – despite the existence of no constitutional clause on the matter. The decision marks a new phase for the Brazilian political funding system, which had been based on exclusively public financing in the 1970s and on mixed financing in the 1990s. I gather the main criticisms against the ruling into 2 categories: de facto and legal claims. I do so in order to demonstrate that: firstly, by abruptly restricting the contribution to parties and campaigns without an equivalent reduction in spending, the STF forced political agents to pursue new sources of public and private financing, with disastrous consequences for the political financing system; and secondly, it remains highly debatable whether the court’s decision was in fact based on any constitutional principle.
The STF is considered a key element in the Brazilian institutional arrangement, because of the remarkable universe of themes submitted to its appreciation and for its willingness to interfere in relevant causes of the national political life. If the judicialization of politics seems to be a characteristic of the Brazilian constitutional arrangement, it is important to question about the obstacles for fundamental rights in order to constitute the main agenda of the Court. To answer that, we will explore the characteristics of the judicial review exercised by the STF, based on its normative conformation and the praxis of its activity. Thus, it is suggested the combination of institutional approaches with political dynamics. The objective is to analyze how the Court, based on its internal dynamics, can decide (or not) the issues, in view of a cooperative and dialogical dimension necessary for the exercise of a legal activity with undeniable political repercussions.