A judicialização da saúde no Brasil: cidadanias e assimetrias

Abstract

The Brazilian Constitution of 1988 assures that health is a right of all and a duty of the State (article 196), however, in reality, this right is not being guaranteed. By realizing this contradiction, some civil groups seek, on the Legislation, the materialization of their rights that still remain an abstraction. The recent insertion of Judicial Power on health issues can be interpreted as a means of politics Judicialization . The term, however, lacks a clearer definition that would allow a proper identification of this phenomena s depth in Brazil. In the analysis of this process two different trends of thought can be perceived, one that sees political activism on the part of the judiciary as a problem to the development of citizenships, or in other words, a means of enhancing social asymmetries; and another that sees this phenomena as a way of expanding these rights. Health issues in Brazil can sustain both arguments. Because of that, the Judicialization process must be analyzed by two approaches: the individual and the collective. Each perspective mobilizes diverse actions and actors. Thus, health Judicialization, at first individually required and restricted to the judiciary s first instance, gained new features and demanded a more complex debate, engaging this power s maximum instance: the Supreme Federal Court. This process became more relevant since the convocation of a Public Audience aiming to discuss the future of health Judicialization in Brazil. This Audience was exemplary, since it counted with the presence of the main actors both in favor of this phenomena s continuation and those against it. Furthermore, the importance of the Direct Lawsuit of Constitutional Judicial Review (abbreviated as Adins) is highlighted in the definition of decisions about health policies in Brazil. It s important to emphasize a breach on the juridical texts of Law 8080/90 and EC29 that helps many actions on the Supreme Federal Court voted in favor of health issues. Such actions demand this institution to fill in the existing legal breaches. Many Adins filed on the Supreme Federal Court presume some federal conflict, especially considering the concurrent format of most Brazilian social policies. In this sense, discussing Judicialization in the light of federative conflicts is a way of broadening and qualifying this debate. This thesis adopts the methodology based on the analysis of public speeches that took place during the Health Public Audience and the case study of four selected Adins