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ABORTION: A LOOK UNDER THE PERSPECTIVE OF RIGHTS TO PRIVACY AND


DECISIONAL AUTONOMY

Riva Sobrado de Freitas1


Vincius Almada Mozetic2
Daniela Zilio3

ABSTRACT. The study aims to investigate the right to privacy, the decisional autonomy and, deep, the selfdetermination of the own body, while pro-abortion arguments. Then, it was done an exploratory-explanatory
literature, qualitative, using the deductive method. Regarding the results achieved, if reaps that, in fact, the
positive arguments to the practice deserve to be respected, because they are guided by very important rights and
grounded solidly. It concludes, therefore, that there is extreme consistency in the justifications for abortion, and
it cannot let to consider them, despite, the arguments against the practice deserve extreme respect.

Keywords: Abortion. Privacy. Decisional Autonomy. Self-determination. Right to own body.

1 INTRODUCTION
1 Post-doctoral degree in Law from the University of Coimbra; Doctor and master in Law by
PUC / SP; Coordinator, researcher and professor of the Post-Graduate Program in Law of the
University of the West of Santa Catarina (UNOESC); Retired assistant professor at the State
University of So Paulo Jlio de Mesquita Filho - UNESP. University of the West of Santa Catarina
(UNOESC). Rua Nereu Ramos, 3777-D, Bairro Seminrio - Chapec / SC - CEP: 89813-000. E-mail:
rivafreit@ig.com.br
2 Doctor in Law from the University of Vale dos Sinos River - UNISINOS; Master in Law
from the University of Santa Cruz do Sul - UNISC - Social Rights and Public Policies; Professor and
Researcher of the Post-Graduation Program in Law of the University of the West of Santa Catarina UNOESC and lawyer. University of the West of Santa Catarina (UNOESC). Rua Nereu Ramos, 3777D, Bairro Seminrio - Chapec / SC - CEP: 89813-000. E-mail: vinicius.mozetic@unoesc.edu.br
3Master's degree in Law from the University of Western Santa Catarina (UNOESC); Specialist in Civil Law and
Civil Procedural Law from the University of the West of Santa Catarina (UNOESC); Graduated in Law from the
University of Western Santa Catarina (UNOESC). University of the West of Santa Catarina (UNOESC). Rua
Nereu Ramos, 3777-D, Seminary Neighborhood - Chapec / SC - CEP: 89813-000 E-mail:
danielazilio@yahoo.com.br

The study in question is focused on the controversy over abortion, extremely


important and divisive issue, both from a legal point of view as moral, ethical and
philosophical.
However, it does not have the scope to bring up the recurrent discussion related to
the right to life of the unborn versus the right to freedom of pregnant women. The aim,
therefore, is fundamentally investigate in what the defense arguments are based regarding the
practice of abortion. Such arguments relate primarily to the right to privacy and the right to
self-determination of one's body - purposely pleonastic- expression, in terms of decisionmaking autonomy.
The study is justificed once the subject in which he is guided is extremely
contemporary, and more, timeless, this is a controversy in the human mind since the earliest
times. Moreover, the problem involves moral, ethical, philosophical and legal guidelines, in
addition to encompass religious aspects, medical, social, cultural and political. Therefore, the
debate on the subject is always needed and clarifies important issues, especially when part of
a specific point of view of analysis, as is the case study, which seeks to understand the
problem of abortion from the point of view of right to privacy and the body's own selfdetermination right, based on the decision-making autonomy.
The problem of the study is based in the questioning made from the pro-abortion
arguments, inquiring in what they are grounded, and what its importance.
The purpose is, in general, study the ideals that justify abortion. Specifically,
consider the abortion, view the situations in which it is allowed in the Brazilian legal system,
envision the intrinsic ideals and sacralized related to human life developing, analyzing the
right to privacy and the decision-making autonomy in the struggle concerning the issue, and
finally bring an overview about the difficulty of definition of what is, in fact, right or wrong,
and hence the difficulty of positioning on issues related to the topic.
Therefore, the study will be systematized so that the first will be a brief review of the
issue (abortion), in general aspects, then the analysis will turn to Brazilian Law and the
assumptions on which abortion is permitted, in sequence will be analyzing the intrinsic,
sacred value attributed to the intrauterine human life, the values of the decision-making
autonomy and the right to privacy will be checked, and, which is ultimately weighted the
concept of "good life" in Habermas' view and abortion in view of the difficulty of positioning
on the subject from the social point of view.

It is noteworthy that, as mentioned elsewhere, is not the aim of this study present the
conflict between the right to life and the right to autonomy, either to position itself favorably
to the choice of one of those fundamental rights over another, but envision what is the
argument used mostly by women who strive earnestly for the right to abortion, a right
founded on the decision-making autonomy, the right to privacy and the right to own body as
part of human individuality. The aim, then, is to reflect on the importance of the right to
privacy and the right to self-determination over their own bodies, in terms of decision-making
autonomy, not contrast these rights with the right to life, or position in relation to
contraceptive abortion.
Regarding the methodological aspect, the research is based on technical, rational and
systematic procedures with the scientific basis of intent, providing logical foundation for
research. It is, finally, an exploratory-explanatory, qualitative literature collection research,
where it is used the deductive method, and it has the purpose, starting from assumptions, of
exploring and describe the topic under discussion, is revealing possible solutions to the clash
that appears and without running out the theme.
2 ABORTION: IMPORTANT INITIAL CONSIDERATIONS
Matters involving strictly personal nature of decisions often generate contradictions
and conflicting views, even from the point of view of morality. Resolutions involving the
rights of women, a portion of the population, although through a sham curtain was always
stigmatized, and is historically seen as more vulnerable, seem to bring even more
controversial, although what you want is just to ensure some of their most basic rights.
Abortion may present the greatest, or one of the biggest controversies as it relates to such
decisions.
Now, briefly, the abortion or the process of abortion can be characterized as the
natural process interruption of pregnancy in which occurs, to Silva (2002), prenatal death of
intrauterine human life.
Similarly, according to Diniz (2001), the term "abortion" originates from the Latin
abortus, arising from aboriri, it means to die, perish, and has been used to indicate the
interruption of the pregnancy process, before the natural time It is spontaneous or not, and
there expulsion of the fruit of conception or not.
In the north, in the medical stuff, according to Diniz (2001), in the opinion of
obstetricians, occurs abortion distinction in relation to preterm birth, and that termination of

pregnancy in the first six months of intrauterine life, taking into account the possible
unviability of the fetus. On the other hand, premature birth occurs after the sixth month of
pregnancy, if the product of conception persists alive.
There are several methods of abortion classification. Regarding the cause that causes,
moreover, it can be divided into spontaneous and provoked. Well, as it relates to miscarriage,
or spontaneous, there is nothing confrontational, at least in the moral sphere, ethics, and
primarily legal. On the other hand, when talking about the possibility of termination of
pregnancy by the will of not wanting woman carries forward the process of gestation, the
discussion is great and truly conflicted.
Incidentally, regarding the legal framework, there is some disagreement regarding
the concept of abortion. Some understand it by premature expulsion, violent and caused
intentionally the fetus, regardless of viability, age or even regular formation, not considering
the cases in which there is abortion without the product of conception is expelled, which may
prove to be absorbed by body of the pregnant woman or have a mummification process.
Others, however, relate to abortion to feticide cover for the destruction of pregnancy only
when the product reaches the design of the fetal period. Finally, some others evaluate abortion
as the termination of pregnancy, whether or not to expel the fruit of conception, before
maturity, covering the period of conception to the onset of labor, as noted Diniz (2001). As a
rule, the viability of the fetus is not considered for the concept of abortion, being inapplicable
in principle, the chronological criteria.
The opinions, in whatever sphere that it is dealing with, are extremely divergent and
range from those extremely liberal and pro-abortion, regardless of the situation, even those
more conservative, where in other hand, abortion is not justified in any situation. Between
these two concepts there are also several others, according to which marks Dworkin (2003).
For the author, the views of people do not have only two variants, one conservative and one
liberal. Both among conservatives and among liberals there are degrees of opinion, from those
more extreme to moderate, and there are also differences of opinion that can not be located in
the conservative-liberal spectrum. An example, to Dworkin (2003), is the view that a late
abortion is worse than an early abortion, behold, this view can not be identified clearly as
more liberal or more conservative. Incidentally, on the discussion of contrary and pro-abortion
arguments, reiterates Junges (1999), in a pluralistic and democratic society, how to influence
the search for solutions to certain problems is precisely the dialogue and the participation of
arguments convincing.

According to the author, many times the groups organized to fight against abortion
are formed by members who do not care about the changing social structures of society, that
causing abortion. Thus, the defense of human life from fertilization can be a hypocrite if you
do not worry about the social uterus to receive the future child, that is, when it is not aborted
in the womb, the social uterus to expel a lack of social conditions a life with dignity and the
issue of abortion pervades this broader perspective. Still, Junges (1999) states that the groups
favorable to abortion did not fight for change, proposing that it be the solution when it does
not have the courage to go deep into the matter.
Thus, Dallari (1994) explicit that abortion is a typical case where the positions on the
ethical foundation are irreconcilable. As the author, in addition, the frequently asked positions
do not define all cultures at all times in human history. Currently, with the predominance of
Christian culture is strong positioning according to which life must be protected and
garrisoned by States in general, from the conception- which in no way makes the antagonistic
idealsit less strong.
So much so that the struggle for women's empowerment 4 and the subsequent
decriminalization of abortion continues with increasingly significant proportions. Even the
September 28 was chosen as the Fight Day for Decriminalization of Abortion in Latin
America and the Caribbean, or Latin American and Caribbean Day for the Legalization of
Abortion. The definition of such date occurred in the 5th Meeting Feminist Latin American
and the Caribbean, held in Argentina in 1990, according to the Brazilian Institute of Criminal
Sciences (2010).
Fight by the decriminalization of abortion on the grounds that it would protect the
life and liberty of women, beyond that, punish the practice would not prevent new happen
abortions, but boost their achievement illegal and unsafe manner, so that permission the right
to abortion would be a matter of public health. Note that the Latin American and Caribbean
women seek the realization of the right to terminate a pregnancy if they wish, by the strong
argument that the criminalization of abortion makes women seek this kind of clandestine
service, which has led many of them to get sick and with serious consequences, death or the
worst. In Latin America and the Caribbean, with few exceptions 5, abortion is not legalized (or
4 About gender, feminism and fight for the rights of women, there is the thought of Judith
Butler, American philosopher author of works truly critical on the subject.
5Among the countries that have legalized abortion in Latin America, it cites Uruguay, which
recently in an avant-garde decision in terms of Latin America, in 2012, decriminalized the practice in
the first twelve (12) weeks of gestation with some conditions.

only in specific situations). The Brazil still has quite conservative legislation in relation to the
subject, the subject of which is discussed below.
So ponder the views and delve further into their arguments is something essential so
that you can in fact bring concrete ideals to the discussion, without unnecessary prejudices
and prejudgments.
Nevertheless, it is important to note that, despite is extremely controversial; there are
currently cases in which abortion is permitted, and approved by the Brazilian legal system,
although the controversial issue. It is, moreover, what the study discusses from that time.

3 THE CURRENT LEGAL INTERRUPTION OF PREGNANCY IN NATIONAL LAW:


ABORTION IN DEATH RISK CASE FOR PREGNANT AND RAPE CASE AND
THERAPEUTIC ADVANCEMENT OF CHILDBIRTH IN FETAL ANENCEPHALY
CASE
The question of permission or legalizing the abortion was, and is an extremely
controversial issue. The discussion permeates medical ethics and enters specifically in the
legal sphere, on the very discussion of the pregnant woman's autonomy as part of their right to
privacy.
On the subject, adds Dworkin (2003) that is in the unconscious of the population that
the discussion is guided by a moral and metaphysical question - whether even a newly
fertilized embryo is a human being with rights and interests. Indeed, there is the involvement
of all ethical sphere in the discussion, beyond the biological aspect when you give the
beginning of life.
Bulos (2008) argues that the Constitution protects all forms of life, that is, both the
expected external life (intrauterine), as its consummation (extrauterine) in two aspects: the
right to be born and the right to exist or survive. For this reason, IN the Brazilian law, in
general, abortion is considered a crime.
Nevertheless, there are currently cases where the practice is legal, with the exclusion
of the crime, as in the case of death of pregnants, and in the case of rape. Following recent
Court Maximum decision, even in cases of fetal pregnancy with anencephaly, there is the
possibility of therapeutic anticipation of delivery.
About abortion in case of possibility of the pregnant woman's death, recommends the
Criminal Code, article 128, section I, not punishes abortion practiced by a doctor if there is no

other means of saving the mother's life. Still, in cases of rape, abortion is permitted under
Article 128, item II, of the same Codex, which states that if the pregnancy results from rape
and the abortion is preceded by the pregnant woman's consent or, if incapable, his legal
representative, there is no punishment.
Moreover, as explained elsewhere, now the therapeutic anticipation of the childbirth is allowed when the developing fetus has anencephaly. This position is guided in the
decision of the Supreme Court, in place of accusation of breach of fundamental precept
(ADPF 54, judged in April 2012). In this trial, there was the recognition by the Court
Maximum of the right to therapeutic anticipation of delivery, in the case of pregnancy of an
anencephalic fetus, since it was decided that shows unconstitutional the interpretation that the
termination of anencephalic fetus pregnancy is conduct typified in articles 124, 126 and 128,
sections I and II of the Criminal Code.
While it can not be called abortion the case under discussion, for lack anencephalic
fetus to extrauterine life expectancy, it is clear that it denotes the relentless pursuit of
protection of the most elementary rights of women who experience this delicate situation.
According to the Minister Marco Aurlio Mendes de Farias Mello, the rapporteur of
the case, the hypothesis it is clearly therapeutic anticipation of the child-birth, to the detriment
of the term "abortion" since before the impossibility of survival of the fetus after delivery, you
can not speak in greater protection to this than to the dignity and the mother's choice of
freedom, or parents. Note that this freedom asserted precisely consistent with the decisionmaking autonomy of pregnant women, especially in a case as crucial as this, where, in fact,
the suffering to carry on a pregnancy that is designed non feasibility of life newborn, can
injure the rights of the woman herself.
Even the judgment of accusation of breach of Fundamental Precept explained,
recognized the right of women to sexual and reproductive freedom, the right to health, both
physically and psychologically, and their right to self-determination.
The rapporteur, Minister Marco Aurlio, clarified not be the right to life an absolute
right, and even mentioned in his opinion, that there is no need to annihilate the rights of
women to the protection of the rights of the fetus, even in this case where is consabido there is
the impossibility of extrauterine life. In other words, it would impose too great a sacrifice to
the woman to make her take forth a pregnancy, which inevitably the result would be the death
of the fetus. Such maintenance would against fundamental rights, as already mentioned,
injuring the personal dignity of women, as well as their right to privacy, self-determination,
their sexual and reproductive rights, and even their right to health.

At the same vertex, the maintenance of pregnancy restrict women's right to


psychophysical integrity, foisting this a disproportionate restriction of their right to selfdetermination, making her living in a kind of false imprisonment of his own body.
Note that it was decided that the safety of the fetus will not survive outside the
womb, and yet you do, it will be for a very short time6, it can not and should not be preserved
at any and all costs, to the detriment of the rights basic woman.
So finally we reap that abortion, as a genre, is still considered a crime in the
Brazilian legal order. However, on some specific situations, there is exclusion of the crime,
indicating that the confrontation of some rights, especially pregnant women, to the detriment
of pure and unique protection of the life of the fetus - without entering exactly the early
theories of human life and personality - rights that are likely to prevail, or, at least, in
sopesamento interests, be taken into consideration. The same happens regarding therapeutic
anticipation of delivery, in case of pregnancy the fetus anencephalus.
However, to achieve the right to abortion, although in specific situations, some
obstacles must be overcome, obstacles, those who were instilled in the human mind since the
earliest times. It is the case of belief in the inviolability of human intrauterine life, his
character of sacredness, as shown below.

4 THE SACREDNESS AND INTRINSIC VALUE ASSIGNED TO LIFE HUMAN


INTRAUTERINE AND DISCUSSION ABOUT ABORTION
Human life is, without a shadow of doubt, the value more strongly protected in legal
terms, and in the same way, as it relates to moral issues. For this fact, when it comes to
abortion, the controversy is always great.
There are, however, who argues vehemently that the question of the morality of
abortion ban is not necessarily on whether the fetus is or not human life, to already be one
person, but to protect the intrinsic and sacred value of this same life.

6As relates to the action in question, several authorities on the subject were heard in the pubic
hearing, in order to better understand the anomaly, and therefore discern on the subject with greater
background knowledge and free way. According to experts, anencephaly is completely incompatible
with extrauterine life. Even they were informed by experts in cases believed to be extrauterine survival
of anencephalic baby. misdiagnosis undeniably been the flashpoint of such beliefs.

In turn, Dworkin (2003) believes that people consider to be inherently unfortunate


that human life that started has a premature end. Regarding the idea of the sacred, the author,
in principle, something intrinsically important is if its value is independent of what people
appreciate or need. So the life of the fetus would be of intrinsic value, whether is has or not
have instrumental or personal value.
When he speaks of the sanctity of human life, Dworkin (2003) reports that is seen by
this point of view, in part because it is believed that man is made in the image and likeness of
God. Still, the idea that every individual human life is inviolable is rooted in two bases of the
sacred, namely, the natural creation and human creation.
Similarly, explains Junges (1999) that, in the sacral conception, life is God's property,
and the human being is his mere administrator, it being conceived as something untouchable.
As well emphasizes Namba (2009), life as well granted by the deity, or even the
intrinsic finality of nature, have a sacred status and, thus, could not be prepared, even if it was
the will expressed of its holder.
Asserts Dworkin (2003) that even conservatives consider to be possible to perform
the abortion for the salvation of mother's life, and that there's a controversy, since these same
people often consider to be impossible for a person kill someone to save the lives of others. It
would not be in this case, just the doctor's role? For the author, the more accepted exceptions,
clear that the conservative opposition on abortion does not assume that the fetus is a person
endowed with the right to life.
On the other hand, the liberal conceptions do not arise simply denying that the fetus
has a right to life, as a person.
A paradigmatic liberal position rejects the view that abortion is morally problematic,
but morally justified for a number of important reasons. Also, the concern of women with
their own interests is taken as a justification for abortion when the child during pregnancy and
birth consequences are severe. Moreover, another component of the liberal conception is the
political opinion, in the sense that the state should not intervene or to prevent impermissible
abortion morally.
Dworkin (2003) mentions that in the Western world, even with church and state
separate, the abortion debate often has character of conflict between religious sects. Religious
practitioners tend to have a strongly conservative opinion on the subject. Both the ideas of the
religious conservatives as those from the most liberal, who support abortions in exceptional
conditions, not based on the fact that the fetus a person, but the fact that every human life has
intrinsic and sacred value.

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For many centuries, explains the author, it was believed that the traditional
conception of the church that abortion can be sentenced for insulting the sanctity of life, even
if the fetus has no soul, were able to sustain an opposition to premature abortion. There is,
moreover, a debate among historians and philosophers of religion, to know what would have
triggered the change in thinking that the fetus would have soul some time after conception, to
the thought of immediate animation. Dworkin (2003) adds that practicing Catholics, should
believe in fact that the fetus is a person with the right to life from conception, could not accept
the exceptions, but for the most part, they accept.
See, citing a survey by sociologist Carol Gilligan, a professor at Harvard University,
the author states that, despite the uncertainties, any woman who wanted to abort attributed his
doubts to the point of being a fetus a person or not. They questioned themselves, moreover, as
the responsibilities, to be wrong having a child which you could not take care of properly.
The author reports this as a description of what most people regards as a moral defect
of abortion. An abortion is belittle the inviolability / sanctity of human life, setting moral
defect, except if the intrinsic value of other lives were neglected in the decision against the
practice.
Finally, he cites Dworkin (2003) a decision of the European Court of Human Rights,
which led to believe the assumption that the fetus is not a person with rights and interests, and
that the regulatory laws and prohibiting abortion are justified just based on the fact that
considers its implementation as a risk to the value inherent of human life.
The case, in short, refers to the judgment that decided to ban the disclosure of clinics
that would perform the abortion in Ireland, through counseling on abortion issues, the fact that
such disclosure would hurt freedom of expression and information. There was a
proportionality test between abortions that could be avoided and it was decided that the
number would be too small to be violated the rights to expression and information. For the
author, it is clear that the proportionality test requires that laws prohibiting abortion are not
intended to prohibit murder, but allow them to realize the inherent value of life.
Note that, under this argument, it is clear that the rejection of abortion is just the
issue that the fetus is a person with rights and privileges from the conception, but the question
that started human life is sacred, and has intrinsic value and can not be violated under penalty
of violating the sacred.
Thus, as above, the still sacralized perception of human life is argument for those
who condemn the practice of abortion in any situation. Nevertheless, the right to privacy, and

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the decision-making autonomy of pregnant women, serve scope to its defense, as follows
analysis.
5 THE RIGHT TO PRIVACY AND DECISIONAL AUTONOMY AS PRO-ABORTION
ARGUMENTS
The right to privacy is a personal right of personality to the extent that the rights of
personality seek to standardize the protection of own attributes to the individualization of a
person seeking the protection of intimate aspects of the individual, or originated aspects of
their interaction or projection in society. The protection of personal psychic sphere thus be
contemplated in the list of those rights. Similarly, the protection of the attributes of the
physical body, such as the right to own body or his separate parts, also includes the own
personality rights, as the explicitness of Bittar (1989).
Being this way, it is musty that often the defense of abortion involves the defense of
the recognition of women's identity, in the sense that there is a possibility that there is, with
the achievement of abortion, preserving the right of pregnant women to privacy and the
consequent decision-making autonomy, rights inherent to the personal dignity of individuals,
as it express itself.
This decision-making autonomy refers to the individual as the center of its process,
determining a sphere of self-determination, in which he (in this case, women) must exercise
its specific identity, making their choices by themselves ensejos, including without justifiable
them, according to Cohen (2012). In this vein, according to Arendt (1989), the rights of this
nature give the individual a "legal persona," which serves as a "protective shield" to your
personal identity.
Personal identity this that, according to Otero (1999), aims to ensure that identifies
the person as a unique and irreducible individual, possessing an absolute dimension, which
makes every single being and expresses the individuality of the physical and psychic
personality and also a relative dimension, so that every human being, over to its uniqueness,
has a defined identity, in parallel to the "history" that is inserted its existence.
Meanwhile, reports Cohen (2012) that women have the right to be treated as
individuals, and not suffer any restriction in view of the sex to which they belong, they can't
either be placed in lower positions, even the law country just recognize from the 1998 Federal
Constitution the the woman had the same position of the man as the "breadwinner", by Garcia
(2010).

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Describes Cohen (2012) that both the voice protection, so to list in the public sphere,
and the protection of privacy in close relationships are crucial in order to avoid exclusion, or
leveling, or even homogenization, in a democratization project.
Thus, this privacy is the one that assures individuals operative autonomy in what
relates to personal nature concerns.
Points out Cohen (2012) that the principle that individual privacy rights, which
protect the decision-making autonomy is compatible with the recognition of inter-subjective
character belonging to the processes of formation of personal identity, and awareness of
historical and contextual sources of values.
In the same north, the rights of personal privacy ensure areas of decision-making
autonomy for all individuals, not generating a voluntarist conception of the individual in any
way. So when the question of autonomy appears in Courts decisions, there is no need to
impose them a voluntarist ideal of person. The allocation of decision-making autonomy to an
individual simply militates contrary to the state paternalism.
Still, the individual's identity is formed not only by the group values. To Cohen
(2012), in differentiated socities the privacy rights have important roles in protecting the
capacity of individuals for formation, maintenance, and presentation to others in a consistent,
authentic and distinctive self-conception.
Thus, the new privacy rights also protect the identity in the face of leveling in the
name of a community of vague idea or most of the conception of the common good.
Protecting individual differences in the face of "standard" adopted by the society or group to
which the individual belongs. In short, not only the right to be left alone, but the right to selfdetermination - the decisria- autonomy is protected by the right to privacy.
In addition, to enjoy a right to privacy that ensures decision-making autonomy means
not be obliged to disclose the reasons which make ethical choices, or to submit the reasons or
judgments of the group.
Regarding abortion, Cohen (2012) points out that all people are individuals
embodied, that is, people are their bodies, the body of the person is not extrinsic to what it is,
therefore, part of their personal dignity . The identities and legend are closely involved with
the body and which is made of them, since the body is the mode of being of the person in the
world. Thus, the issue of abortion which seems to be at stake is the identity and individuality
of women, something intimate and worthy of protection.
Hence the fact that the women who support abortion refer both to the question of
having right on their own bodies.

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In the same vertex, it has been highlighted by Freitas and Baez (2014) the importance
of the term "embodiment", the significant embodiment, the sense of his own body as substrate
of its own personal identity. Just as happens with the other dimensions of privacy, the body's
integrity is essential to understanding the decision-making autonomy, and consequent way for
the formation of identity.
Being this way, imposing a woman bear an unwanted pregnancy, in this light, it
would impose an identity, the identity of the mother, while the bodily integrity, physically and
emotionally, is at risk in the laws that criminalize abortion, as well as the inviolability of the
personality. The experience of pregnancy is a change in the personification of women and,
consequently, in their identity and sense of individuality, which pervade the issue of bodily
change.
In case the bodily integrity is essential to the identity of the individual, and deserves
to be protected as such by the rights to privacy, it may only be disregarded by an even greater
state interest. However, it seems to be at stake something much more serious, involving
psychological integrity of women since imposing this continuity of an unwanted pregnancy
would be extremely invasive, causing several of their most basic rights were mitigated.
Relates Cohen (2012) that the breeding to the concerned issues are fundamental, here
involving the woman's identity, their self-affirmation processes, and the very understanding
that she makes herself. The issue of inviolability of personality for control of his own body is
essential to any notion of freedom. Considering the right to abortion as a right to privacy is
thus to recognize the difference between the women, letting each one set this difference.
Still, the best argument for the application of the constitutional right to privacy to
abortion marks the physical and psychic costs of unwanted pregnancy, as Dworkin (2003)
says.
The author remember that feminists do not argue that the fetus is a person with own
moral rights, but report that it is a creature with moral significance. They highlight the
mother's responsibility to make a decision that only she, and no one better than she can take.
On abortion and the right to privacy, it is important to highlight "Roe versus Wade"7,
American precedent of 1973 recognized the right to abortion based on the right to privacy of
the woman as an individual, saying that the pregnant woman, and only she as an individual,
7As it relates to international cases on the subject, of impact beyond the legal fatherland order,
also worth analyzing the 2141 case, known worldwide as the case Baby Boy, appreciated by the InterAmerican Commission on Human Rights (IACHR), which resulted the Resolution 23/81 of 6 March
1981.

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can make the decision to carry a pregnancy forward, or not, as Dworkin (2003) says. Notice
that, in this case it was decided that the pregnant woman has a specific constitutional right to
privacy in matters relating to procreation, including abortion, since she and her doctor choose
to do it.
According to Silva (2002), with the decision of the case under discussion, the US
Supreme Court recognized the right to abortion based on the 14th Amendment (right of
privacy), so that in the first trimester of pregnancy, there is freedom to abortion without any
state intervention; in the second trimester of pregnancy, this freedom may be limited by state
regulations, and finally, in the third trimester, the state can veto the freedom to abortion. Thus,
the Supreme Court assured the federal states the possibility of establishing restrictions on
abortion in progressive gestational period, justifying the protection of the fetus from the
possibility of autonomous existence.
Thus, finally, analyzing the question in the light of women's self-determination right,
you can place that fits this look to you, reflect on their own views and decide, based on their
right to privacy if you want to proceed or not with the pregnancy.
It should be noted, however, that at no time these arguments seek to defend abortion as
a contraceptive method, but aim, instead, put on reflection the importance of physical and
mental integrity, the integrity of the personality as a whole, considering seriously the question
of the woman is not restricted solely to her womb.
6 THE CONCEPT OF "GOOD LIFE" WEIGHTED IN HABERMAS: ABORTION
AND DIFFICULTY IN POSITIONING FROM THE SOCIAL POINT OF VIEW
In addition to the right to self-determination of his own body, and the right to
privacy, all individuals have, and deserve to be respected, their right to personal identity, as a
right inherent to the human personality. As already pointed out, the imposition of a pregnancy
would be the imposition of a new identity to the woman, against her will, which could bring
him devastating consequences.
Jrgen Habermas, in his brilliant "The Future of Human Nature," constantly
mentions the right to personal identity, when reporting its concern about the right of every
person to self.
In the work under discussion, Habermas' thought enters in extremely controversial
issues, related primarily to eugenics. The philosopher demonstrates concern for the way in

15

which people understand the environment in which they live, hence the interpretation that the
right to personal identity is so important.
Speaking of identity, Habermas (2010) states that, when it comes to identity as being
the species, different conceptions compete. Naturalistic representations of man recorded in the
language of physics, neurology or evolutionary biology, compete with the classical
conceptions of man, externalized by religion and metaphysics. Still, although they are at a
higher level of generalization, the reflections regarding the ethics of the species divide both
the ethical and existential reflections of the individual as to the ethical policies of nations to
refer to a particular life context, appropriate for interpretation. Similarly, in this case,
cognitive research on how humans should be understood as examples of the human species,
from the knowledge of relevant anthropological facts, joins the reflection that assesses how
each plan to understand.
Notice that the self, repeatedly used in Habermasian work, refers to the actual
construction of the identity of each individual, a process which in itself is already impregnated
with mishaps, imagine yourself in the event of the imposition of an identity which does not if
you want to, neither if you are prepared to take.
In fact, for Habermas (2010), to notice yourself worthy is something that involves the
construction of personal identity of each subject, ie how the individual sees, analyzing the
inside to the outside, is the primary condition for that their personal dignity is preserved, to
the extent that its self is parameter to this dignity.
Wounded then the right to self of the subject, therefore, his personal dignity would
be, in fact, wound, because the way the person is perceived as a human being, is part of their
dignity, and their perception as an individual owner of this same dignity.
Well. That explained, it is worth mentioning at this point that, following the same
reasoning, Jrgen Habermas also sought to reflect, in philosophical terms, the difficulty of
conceptualizing the good life. Habermas argues (2010) the idea that the post-metaphysical
thinking must prevail if a moderation in dealing with the taking definitive positions in relation
to the good life or not failed.
About that when Habermas (2010) is questioned about whether or not there postmetaphysical answers to the question about the good life, reports that currently still practice
philosophy did not waive normative reflections. However, in its entirety, it is limited to
questions of justice, according to the author. It strives especially to elucidate the moral point
of view that people adopt to judge standards and actions, whenever it comes to constitute
what is of equal interest of each and good for all.

16

Put that seem to moral theory and ethics is no longer guided by questions concerning
"what I should do" and "what we should do".
However, theories today about justice and morality tread own ways, different from
that of ethics, making this the classic sense of a doctrine of right living.
The most relevant issues, says Habermas (2010), so that philosophy moves to a
higher plane, only analyzing the formal properties of self processes, without, however, adopt
itself a position on the content.
Similarly, as Feldhaus (2005) says, philosophy has the function to study what
constitutes the good life to contemporary pluralistic societies. It doesn't consist, as has already
occurred, in a number of practical advice about what would be a good and happy life.
Starting from this assumption, you see the difficulty of taking positions, from the
social point of view on controversial topics by nature, as is the case of abortion, since it was
not yet built a consensus on what is and is not right.
Yet, Habermas (2010) mentions issues related to intrauterine human life and the
controversy over what is or is not correct for one or all 8. Explains that no one doubts the
intrinsic value of life before birth, whether she called "sacred" or refused such sacredness of
what constitutes an end in itself. However, the normative substance of the need to protect the
pre-personal life is not a rationally acceptable expression for all citizens, or the objectifying
language of empiricism, nor religion.
Thus, the concept of right or wrong in terms of a strictly personal nature of choices,
or as well positioned by Habermas (2010), the concept of "good life" or "right life" seems far
from being peaceful. The difficulty extends, further, regarding the possibility of miscarriage
and having a minimally peaceful solution, primarily as it relates to moral issues, and then,
especially in terms of law.
So always the discussion is valid on the topic, because if controversial the take of a
minimally peaceful position on the problem from the social point of view, what is
incontrovertible is the necessary guardness to the rights inherent to women, these rights, that
protect as the ultimate, your own personal dignity.
7 CONCLUSION: FINAL CONSIDERATIONS
8 It should be noted that Jrgen Habermas makes specific mention of liberal eugenics and the
possible future construction of human beings "perfect", hence their concern with intrauterine human
life. However, one can denote exactly their explicitness as it relates to the intrinsic value and the
"sacredness" of life still in formation (intrauterine).

17

The theme that guided the study in vogue is controversial and generates long
conflicts and differing opinions. Issues related to abortion bring steadily heated discussions
and the pro and against arguments are well founded.
In this study, we sought a specific verification of the agenda, namely the appreciation
turned to the analysis of pro-abortion arguments, mainly related to the decision-making
autonomy (and the consequent right to self-determination of one's body), the right to privacy
and the right to personal identity of the woman.
It is underlined that the present study is not the bioethical analysis of the theories of
the beginning of human life, neither to question the mitigation or not the right to life in the
event of a possible abortion, or even enter in the right contest to life versus freedom of the
pregnant woman. What is sought, instead, it was especially pervade the harvest of the
argument concerning the ideals in favor of abortion, so that we can reflect critically on the
subject.
So, what was noticed was that the ideal promoters of abortion, based on rights and
the decision-making autonomy, the right to self-determination, and the right to own body, are
extremely plausible, and even if you don't agree with them, you can set aside that they are
strong and coming to protect a portion of the population that is sometimes marginalized and
historically seen as most vulnerable (women), and who, rightly so deserves a specialized
protection, and themselves in mind the material equality that sought, although this
vulnerability is contestable of feminism own point of view.
And speaking about these ideals, we must mark out the first one, the decision-making
autonomy, enhances each individual as the center of its own process, so that each person can
realize their choices, even without having to justify them, based on their right to privacy, as
reiterated throughout the text. It is precisely this privacy that assures individuals the decisionmaking autonomy.
The right to privacy also protects the identity, insofar as it departs from decisions that
go against the views of every being, and in the case of pregnancy, it would be truly invasive
impose the identity of the mother, a woman who did not want it , according to the argument
the practice of abortion advocates. Identity that brought in the study also under the name of
right to self, when it emphasized the Habermas thought.
In this north, the identity of the person is closely linked to its body, from the moment
in which the body is an expression of the way of being each one. It is noteworthy, then, the
great importance of the right to own body for individuality and human identity and the
applicant mention the right to own body by defensors of abortion rights.

18

Thus, motherhood, under the recorded point of view, should be a decision, not an
imposition.
So what can envision is that, despite there is some disgust on abortion, both religious,
metaphysical, moral and ethical, as for legal reasons, we can not close our eyes to the rights
contained in this Article and serving as a basis for the defense of the right to abortion,
because, disregard such prerogatives would disregard the struggle by women for centuries,
and their right to discern and decide, based on their autonomous existence, what to do before
peculiar situations of private and personal nature.
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