ADPF 54 em análise: argumentação teleológica e a possibilidade de ocorrência da slippery slope

Abstract

The present study is justified by the fact that it deals with a theme of high complexity, strong multidisciplinary interest, and which has always been subject of long and intense social discussions: the (dis) allowance of the anticipated interruption in case of anencephalic fetuses pregnancies. In 2012, the Brazilian Supreme Court was called upon to decide the matter and in a historic manner, in the judgment of the Allegation of Disobedience of Fundamental Precepts n. 54, ruled that the Brazilian legal system does not criminalize the acts of those who perpetrate the therapeutic discontinuation in those cases. The list of types of legal abortion in Brazil was, thus, extended. Nevertheless, while the ruling definitively settled the controversy, the reasoning used to abide to the thesis of atypicity by the winning side highly concerns us. The Ministers who abided to the relevance of the ADPF claims justified the non-punishment by stating that the anencephalic fetuses is not worthy of criminal law enforcement because it is unable to express himself as a potential human being, and lacks any possibility of a regular extrauterine life. In this respect, we’ll deal with the matter by pointing out the possible future implications to wrong or originally undesired cases, like the allowance of abortion in cases of other similar congenital letal diseases, in occasion of the occurrence of the Slippery Slope argument, aiming to demonstrate that it is a real and justified cause of concern.