O dever do Estado de fornecer medicamentos de alto custo não incorporados ao SUS: uma breve contraposição entre a ótica utilitarista e a justiça distributiva de John Rawls à luz do RE nº 566.471/RN

Abstract

In electing the human person's dignity as its fundamental pillar, the Federal Constitution of 1988 directed the practice of the State to guarantee it, as the maximum value of the legal order. Among the constitutionally foreseen rights, health, as a fundamental social right, proves to be essential to afford a dignified life, as it is a basic material condition for the well-being of individuals. Hence, based on the premise that the right to health accounts for the existential minimum of every Brazilian citizen, the present study sought to analyze whether the State has the duty to provide high-cost medications not incorporated into the Unified Health System (SUS). That is because, faced with the scarcity of public resources, truly tragic decisions are taken within the scope of the National Medications Policy, which prioritizes meeting the needs of the majority of people, to the detriment of the satisfaction of minority interests, notably individuals affected with rare and/or chronic diseases, which require more expensive medications. To reach a final consideration, theoretical underpinnings were used in the classical utilitarian current and John Rawls' theory of justice, in addition to an approach that included a bibliographical, documentary, and jurisprudential review of the subject. Specifically, as a jurisprudential contribution, the votes of Ministers Marco Aurélio and Luís Roberto Barroso in the judgment of Extraordinary Appeal No. 566.471/RN were analyzed. Concluding that health ought to be regarded as a matter of distributive justice, which means that the application of utilitarianism to medications policy proves insufficient and that the State has a duty, although exceptional, to dispense medicines of high-cost drugs not incorporated into the SUS.