JUDICIAL INTERVENTION AS A MEANS OF GUARANTEEING THE FUNDAMENTAL RIGHT TO HEALTH DUE TO INSUFFICIENT PUBLIC POLICIES

Abstract

The 1988 Federal Constitution established health as a subjective public right and included it among fundamental social rights, granting it the status of a permanent clause. The State is responsible for ensuring universal and comprehensive access to health actions and services. However, insufficient public policies have compromised the realization of this right, increasingly requiring proactive intervention by the Judiciary to ensure its implementation. The phenomenon of the judicialization of health has become significant in recent decades, generating intense debate about its limits and compatibility with the principle of separation of powers. This is because many believe that the Judiciary, by determining the implementation of public policies, intrudes upon the spheres of jurisdiction of the Executive and Legislative branches. The State, in turn, frequently cites budgetary constraints, invoking the possibility of a contingency as justification for failing to meet social demands. Given this context, this study seeks to answer whether the active role of the Judiciary constitutes a violation of the separation of powers and whether it represents the most effective means of implementing public health policies. The research adopts a qualitative and exploratory methodology, based on bibliographic and doctrinal sources, scientific articles, case law, and specialized journals, with the aim of understanding the complexity of the judicialization of health and its impacts on the effectiveness of the fundamental right to health.