Judicialização das Políticas Públicas de Saúde: a Relação Tensional Entre o Político e o Jurídico no Acesso à Justiça e Efetivação de Direitos Fundamentais Sociais de Assistência à Saúde

Abstract

The 1988 Federal Constitution provided in its article 6 as health is a fundamental social right, and provided in its article 196 that health is everyone's right and duty of the state, guaranteed through social and economic policies aimed at reducing disease risk and other hazards and at the universal and equal access to actions and services for its promotion, protection and recovery. And for the viability of this goal we created the Unified Health System (art. 198 CF) to be implemented jointly by the Union, states and municipalities. In doing so the state took upon himself the duty prestacional the duty of health services at the same time it is defined right to health for all, to be fulfilled by appropriate public policies. It happens that in objective reality many people to seek the provision of public health services find themselves frustrated, not being properly met, and experiencing a condition of extreme vulnerability, especially people who do not have the financial resources to resort to private health services. That's when many of these people turn to the courts requesting that their right to health, enshrined in the Federal Constitution, is guaranteed and held, and the decisions of the courts to ensure these rights has been nominated for legalization of public policies, and generating a relationship tension between the political and legal sphere. That's what this paper analyzes focusing on the importance of the performance of the courts ensure constitutional and fundamental social rights of health care and make them effective, and thus, mitigating the part by conditions of vulnerability of those who flock to the courts hoping to see supported.