O direito fundamental à saúde como direito subjetivo: a perspectiva do liberalismo de princípios

Abstract

This work aims to analyze the fundamental right to health as a subjective right in the context of Brazilian constitutionalism, from the egalitarian through the theories of John Rawls, Ronald Dworkin and Amartya Sen. We expose first the two ideas of justice that we think that when applied in practice turn out to halt the proper conduct of the fundamental right to health, and these ideas are Utilitarianism through the theories of Jeremy Bentham and Stuart Mill, and Libertarianism, as proposed by Robert Nozick. Then we show why we believe that egalitarian liberalism is a better alternative to these theories. After, we will explain the concept of human dignity and its relationship with the existential minimum. And finally, we will analyze the contours of the right to health in the Brazilian legal system, exposing briefly about the Sistema Único de Saúde (Brazilian public health system) and demonstrating what is the effectiveness of constitutional norms establishing the right to health, and then illustrate how the Supreme Court Federal uses the concept of subjective right and one of the main decisions on the topic: Injunctive Reliefe Suspension 175.