Judicialização da saúde e separação de poderes: os limites da intervenção judicial nas políticas públicas de saúde no brasil

Abstract

This monograph analyzes the Judiciary’s role in realizing the fundamental right to health, especially from the perspective of the tripartition of powers enshrined in the 1988 Federal Constitution. The motivation for this monograph is based on the author’s personal experience with the Judiciary’s performance in guaranteeing access to medicines and healthcare treatments for various individuals. The objective of the study is to critically address the complexity of the judicialization of health and the constitutional limits that must guide the exercise of judicial functions, considering the practical effects for public administration and society. It also contextualizes the debate between the theory of the “reserve of the possible,” which restricts state action due to budgetary limitations, and the theory of the “existential minimum,” which imposes the obligation to ensure minimum conditions for a dignified life, even in the face of financial restrictions. To achieve this purpose, a qualitative approach is adopted, based on bibliographic research in books, scientific articles, judicial decisions, and data demonstrating the increase in the judicialization of health in recent years. The study concludes that judicial intervention is legitimized in the defense of fundamental social rights, including the right to health, while noticing the need for a review of public policies to avoid significant burdens on the Judiciary and to reestablish a balance in the functioning of the three branches of government.