Claiming the Right to Health in Brazilian Courts: The Exclusion of the Already Excluded

Abstract

The aim of this article is to test a widespread belief among Brazilian legal scholars in the area of social rights, namely, the claim that courts are an alternative institutional voice for the poor, who are usually marginalized from the political process. According to this belief, social rights litigation would be a means (supposedly “a better means”) of realizing rights such as the right to healthcare, since supposedly both the wealthy and the poor have equal access to the courts. To probe the consistency of this belief, we analyzed the socioeconomic profile of plaintiffs in the city of Sao Paulo (Brazil) who were granted access to specific medication or medical treatment by judicial decisions. In this study, the justiciability of social rights has not proven to be a means of rendering certain public services more democratic and accessible.