JUDICIAL ACTIVISM AND THE RIGHT TO HEALTH: THE CLASH BETWEEN THE EXISTENTIAL MINIMUM AND THE RESERVE OF THE POSSIBLE IN THE PROVISION OF HIGH-COST MEDICATIONS FROM THE PERSPECTIVE OF THE SEPARATION OF POWERS

Abstract

This article analyzes the conflict between the principle of the existential minimum and the clause of the reserve of the possible regarding the judicial provision of high-cost medications by the Unified Health System, under the perspective of the separation of powers and judicial activism. Utilizing a qualitative, deductive methodology, the research draws from constitutional doctrine and binding precedents of the Supreme Federal Court, specifically Themes 500, 793, and 1,234.The results demonstrate that the Supreme Court consolidated rigorous technical parameters, establishing that the absence of ANVISA registration generally prevents judicial provision, allowing exceptions only under unreasonable administrative delay and compliance with cumulative requirements. Furthermore, the reserve of the possible cannot generically obstruct the existential minimum without concrete proof of state financial unavailability.In conclusion, the intervention of the Judiciary in public health policies does not violate the separation of powers when safeguarding the essential core of human dignity. This institutional action is legitimate provided it is guided by judicial self-restraint, administrative capacity, and strict limitation to legality control, thereby preventing arbitrary interference in the administrative merit of the public manager.