O direito à saúde na constituição federal de 1988: entre a concretização e a inviabilidade.

Abstract

The inclusion of the right to universal and comprehensive care to health in the text of the 1988’s Federal Constitution innovated in relation to the Constitutions prevailing in Brazil previously. This is because in previous normative situation not dispensed to public health due attention, leaving to the discretion of public officials the implementation of health policies they deemed relevant. Thus, in most of Brazilian history, they are circumscribed to the supply of a poor service, especially for the large portion of the population that was not affiliated to the social security system and also does not have the financial resources to pay for private care. However, the constitutionalization of the right to full and universal health care in the 1988 Constitution brought important challenges in implementing this right, mainly due to the significant amount of financial resources necessary for satisfactory service. Within a context of limited budget resources and growing aspirations of people around the realization of the right to health, the Judiciary has assumed an increasingly participatory role, granting, in place of individual demands, deliverables involving the right to health. But the growing interference of the Judicial Branch in managing public health policies has caused some difficulties in managing the budget portion allocated to the financing of health care, interfering in the planning of public health policies outlined by managers. In this context, the present work is sought by the adoption of a methodological basis backed by literature searches and evaluation of jurisprudential and doctrinal context related to the theme, analyzing how research problem is the interference of the judiciary - which has been increasing to over time and leaning to recognize the right to health as a supply of absolute nature, to have an intimate relationship with the right to life - is legitimate and if it brings or no benefits for the realization of the right in question, starting from the assumption, that the end is confirmed, that it is actually more an instrument that deepens inequalities, far making the constitutional objective of ensuring everyone access to public health care universal and equitable manner.