| dc.description.abstract | The purpose of this study is to analyze the role of Constitutional Courts in contemporary
democracies, in order to comprehend the limits of the Federal Supreme Court's competence in
decriminalizing abortion. The increasing judicialization of politics has demanded a particular
and proactive attitude from the judge, legal instruments apposite to inquires of a restless society
seeking for visibility. These new challenges given to the Judiciary resulted in a political
participation of the judge, for who, in his eagerness to do justice, courses the path of judicial
activism bringing about tension between the political system and the legal system. The Supreme
Court − guardian and interpreter of the Constitution − whenever is vindicated, has showed in
recent decades an extension of its function that goes beyond the interpreter and the holder who
has the final say; in the increase of constitutional precepts of high semantic openness, reveals
nearly a legal capacity aspect. This extremely empowered attitude from the judge arouses
academic curiosities about the limits of his performance in the implement of rights. The study
does not perceive the praiseworthy aspect; however, it perceives whether in making a political
decision, the Supreme Court finds the theoretical field to delimit the borderline between the
legislator and the judge, especially when solving a complex issue, highly charged of feelings,
such as decriminalization of the abortion. Themes related to the new rights guaranteed by the
democratic constitutions − equality, freedom, self-determination − involved in human dignity,
are dependent on the creative power and intellectual capacity of the judge to assign a
constitutional foundation in the realization of a right, especially when passiveness of the
legislator occurs. The claim of constitutional visibility by social groups and movements requires
a committed balanced analysis, mainly because the political choice of the legislator can be
assessed by social control and reevaluated by the judge; however, the judicial right resulted by
decision of the Supreme Court, which has the final say, is far from that accountability. Due to
the increasing politicization of justice and the judicialization of politics, it is important to
discuss the role of the constitutional judge and the limits of jurisdictional activity, when strained
on the activity of legislature. Therefore, discussing about the oscillating boundary of the judge's
power to interpret the Constitution or to exacerbate that power is essential. Regarding
decriminalizing abortion, The STF, when compared to the Constitutional Courts and Courts
involved in this study, besides justifying an anti-democratic scenario by delegation of decisionmaking powers from the political arena, shows the broadening of the judiciary's performance
beyond institutional capacities, and the power dispute – even among its members − compared
to the foreign courts that have decided on the subject. The voices of the streets need to be heard
at the locus of constitutional legitimacy, so that it does not remain to the judge only the open
parameters of the Constitution, when deciding matters of public morality and adjudicating the
role of protagonist of the democratic process. | eng |
