Controle concentrado e proporcionalidade: uma análise da função contramajoritária do STF na proteção do direito à vida

Abstract

This paper aims to analyze the counter-majoritarian function of the Brazilian Federal Supreme Court (STF) in protecting the fundamental right to life, focusing on the application of the proportionality principle within the framework of concentrated judicial review. Initially, it explores the concept of concentrated judicial review, addressing its history from Kelsenian conceptions to its consolidation in the Brazilian legal system with the 1988 Federal Constitution, and its manifestations, such as types of unconstitutionality and specific legal actions (ADI, ADC, ADO, and ADPF). Subsequently, it delves into the theory of proportionality, tracing its historical evolution, defining its sub-principles (suitability, necessity, and proportionality in the strict sense), examining the theoretical contributions of Robert Alexy and Humberto Ávila, and its implicit constitutional foundations in Brazil. Furthermore, the concept of the counter-majoritarian function of constitutional courts, Bickel's "countermajoritarian difficulty," and the justifications for such a role are discussed, especially in safeguarding the right to life, whose complexity ranges from the beginning and end of life to the state's duties of protection. Finally, the research concretely analyzes the STF's counter majoritarian actions and the application of proportionality in two landmark judgments concerning the right to life: ADI 3.510, regarding research with embryonic stem cells, and ADPF 54, which dealt with the interruption of pregnancy of anencephalic fetuses. It concludes that the STF, in exercising its counter-majoritarian function and applying proportionality, weighs complex constitutional values to ensure the protection of the right to life in its multiple dimensions, even when its decisions confront majoritarian societal positions.