Do fenômeno da judicialização da saúde: da restrição ao álibi

Abstract

This scientific work aims to analyze the phenomenon of the judicialization of health, as well as Themes 6, 793, and 1234 of the Federal Supreme Court (STF) within the scope of medication dispensing and access to the right to health and the realization of rights, correlating their foundations, criteria, and possible interconnections in elucidating the interpretative task that may contribute to the solution of problems of jurisdictional provision in the right to health, from a constitutional perspective. It also attempts to construct a scenario of the right to health as a fundamental social right, analyzing the role of the National Council of Justice (CNJ) in structuring public policies on access to medication. The problem of this work seeks to investigate whether the process of symbolic constitutionalization (Neves, 1994) is reflected in the phenomenon of the judicialization of health. It is hypothesized that Brazil has made significant interpretative advances regarding medication dispensing and access to healthcare, due to the complexity of the judicial policy established by the National Council of Justice (CNJ) and the improved understanding of national medication policy by legal practitioners. Furthermore, this work is based on qualitative research using document analysis (Gil, 2022) to construct a scientific investigation analyzing advances and possible setbacks in the achievement of the human right to health within the scope of medication dispensing. To this end, judgments were collected from the website of the Brazilian Constitutional Court, and, based on thematic identification, scientific articles were collected from the CAPES, SCIELO, and Google Scholar portals. The aim was to identify the nature, assumptions, and interconnections of issues related to the judicialization of the right to health. The main results and conclusions of the research aim to prove or refute whether Neves's (1994) thesis of “symbolic constitutionalization” is reflected in the phenomenon of the judicialization of health, including advances in the interpretation of the STF regarding the human right to health through the dispensing of medicines and the structuring of judicial policies arising from the CNJ.