Abortion rights, gender and legal research on fundamental rights

Abstract

After a brief portrayal of the situation of unsafe abortion in Brazil and the feminist struggles for the decriminalization of abortion, this paper discusses the role of democratic constitutionalism in the acknowledgment of new subjects of sexual and reproductive rights. I resort to the political and philosophical basis of sexual and reproductive rights to suggest that the legal regulation can only be considered valid if the “legal subjects” constructed and presupposed by those regulations do not violate the basic grounds of democratic constitutionalism. This happens whenever the relations of inclusion and exclusion posed by their hypothetical contours deny institutional acknowledgment for the experience dissident identities. I suggest the employment of Rosenfeld’s theory for researching abortion rights on a constitutional perspective. This theory provides a tool to show how discourses about rights create and enunciate gendered subjects, and they may work to either expand freedom, or enhance forms of subordination.