The right to health in the jurisprudence of the Supreme Courts and its impact on the defense

The right to health in the jurisprudence of the Supreme Courts and its impact on the defense of public policies in court.

Matheus Carvalho Vieira

Introduction

The 1988 Constitution of the Republic (CF/88) innovated the legal order by providing an extensive list of fundamental rights and guarantees, among which are social rights, mainly provided in Article 6 of the CF/88.

Article 6, amended by Constitutional Amendments No. 26/2000, 64/2010, and 90/2015, establishes that education, health, food, work, housing, transportation, leisure, security, social security, protection of motherhood and childhood, and assistance to the needy are social rights. This provision follows the logic of a Social State of Law and Social Constitutionalism, which gained prominence throughout the 20th century with milestones such as the Mexican Constitution of 1917, the Weimar Constitution in Germany in 1919, and the Brazilian Constitution of 1934.

Social rights are classified by doctrine as second-generation fundamental rights and present themselves as positive benefits that require implementation by the State (Social State of Law) through public policies. They tend to concretize the perspective of material and social equality in the pursuit of better and adequate living conditions. They are also enshrined as foundations of the Federative Republic of Brazil (Article 1, IV, CF/88).

Among the main social rights is the right to health, which according to Article 196 of the CF/88 is a right for everyone and a duty of the State, guaranteed through social and economic policies aimed at reducing the risk of disease and other health issues. It also ensures universal and equal access to actions and services for its promotion, protection, and recovery. In this regard, health actions and services have public relevance, and it is up to the Public Power to regulate, supervise, and control them in accordance with the law. Their execution should be carried out directly or through third parties and also by individuals or legal entities under private law according to Article 197 of the CF/88. As known, doctrine points out the dual character of social rights, especially regarding health, which gains prominence as a social right in the 1988 text: a) negative nature: the State or individuals must refrain from acts that harm third parties; b) positive nature: a welfare state is encouraged to implement social rights.

Given the relevance of this right, this work aims to analyze the main recent rulings regarding the right to health, which are extremely important for the defense of public policies in court, as they systematize various conditions for claiming such a right before the Judiciary against the Public Power.