The judicialization of health: the Supreme Court decisions versus the Principle of Check and Balances

• Autor(a) principal: Costa, Tábata da Silva
• Data de Publicação: 2017
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Cadernos Ibero-Americanos de Direito Sanitário (Online)
• Texto Completo: https://www.cadernos.prodisa.fiocruz.br/index.php/cadernos/article/view/295
• topic: Judicialização; Saúde; Direito; Separação; Poderes.; Legalization; Health; Law; Separation; Powers; Legalización; Salud; Derecho; Separación; Powers

Introduction: The Federal Constitution of de 1988, to qualify the health as a fundamental right, of universal and equal access, and responsibility of the State, and to establish the participation of the judiciary power in the face of threat or injury the rights, emerged  the so-called legalization of health: the interference that power on primarily issues be the responsibility of the executive and legislative powers. The article aimed to identify the position of the Supreme Court (STF) and the interference of the judiciary on the separation of powers principle. Methodology: This was qualitative-quantitative research, descriptive and analytical character, of judgments delivered by the Supreme Court, from June 2009 to June 2015, in appeal, the lawsuits about health actions or health services. Results and discussion: The analysis of decisions show: increased health demands brought to the Supreme Court in 2014 and 2015; predominance of pharmaceutical inputs and assistance demands; trend of the State claimed as appeal reasons the violation of separation of powers and serious injury to the public order; the pacified the understanding of the Supreme Court as the matter. Results and discussion: The analysis of decisions show: increased health demands brought to the Supreme Court in 2014 and 2015; predominance of pharmaceutical inputs and assistance demands; trend of the State claimed as appeal reasons the violation of separation of powers and serious injury to the public order; the pacified the understanding of the Supreme Court as the matter. Conclusion: For the STF, the intervention of the judiciary in public health policy does not violate the principle of separation of powers, does not cause too damage to public order, because the guarantee and realization of the right to health is the State's responsibility, not being allowed, within the constitutional framework adopted, any of the powers disclaim such obligation.