THE ECONOMIC AND GUIDING CONSTITUTION IN LIGHT OF THE JUDICIALIZATION OF HEALTH

Abstract

This paper develops a critical analysis of how the Judiciary addresses health-related issues as a means of ensuring this right for all individuals. It takes as its starting point the text of the 1988 Federal Constitution, which classifies health as a fundamental social right and a duty of the State, to be guaranteed through full and equitable access to health measures and services, regardless of each individual’s social condition. However, it is observed that, under the influence of neoliberal conceptions, the right to health has, in practice, been neglected, leading to a significant increase in lawsuits seeking access to basic resources or treatments. As a result, judicial interventions in matters that, under normal institutional functioning, should be addressed by the Executive and Legislative branches—primarily responsible for ensuring these rights—have become increasingly frequent. In this context, the judicialization of health emerges as a relevant criterion for assessing the effectiveness of the protection of this right, raising the question of whether judicial means alone are sufficient to guarantee the provisions set forth in the constitutional text. This discussion is essential to reflect on the direction of public health policies in contemporary Brazil, considering the limits and possibilities imposed by the democratic regime. The methodology adopted is bibliographic and documentary in nature, with a descriptive purpose, employing a qualitative approach and a pure research design. It was also found that there is a need to adapt administrative and judicial measures and parameters that would enable the State to implement actions capable of optimizing the use of public resources and enhancing the effectiveness of the right to health.