A judicialização do direito à saude e as limitações impostas pelo STF

Abstract

This work aims to discuss the judicialization of the right to health, having as pillars the role of the State in view of the Federal Constitution and the limitations imposed by the Supreme Federal Court. At first, we will make an epistemological cut of the right to health as a fundamental part of the right to life, analyzing the very concept of health and its guarantee supported by the Constitution. Then, the question of the judicialization of the right to health in the legal system will be approached, where an analysis will be made of the realization of the right to health and the need, many times, for judicial interference so that the effective provision of this right is fulfilled. Therefore, the STF's performance as a limiter of the judicialization of health will be analyzed. In this chapter, the judgment of Extraordinary Resources nº 657.718 / MG, nº 566.471 / RN and 1165959 / SP will be examined, as well as the repercussions of the STA 175-AgR judgment. / CE, being treated issues and decisions that have as objective the clear limitation of the Supreme Federal Court to the judicialization of the right to health. Therefore, it will be pointed out the problems that the excess of this judicialization can cause to the Unified Health System, as well as to the whole budgetary structure and public policy. Finally, the rationalization and standardization of judicial action in the area of the right to health will be dealt with, so that the social right to health is considered legitimate when the constitutional and institutional limits are respected, based on the prevailing jurisprudence in our Courts, which is due to the duty of the State to provide health care, either by providing medicines, by providing certain treatments, in order to make the Constitution effective.