O precedente e a garantia do direito à saúde: uma análise processual da judicialização da saúde

Abstract

Given the scarcity of resources for the promotion of public policies, as well as the fact that the 1988 Federal Constitution guaranteed immediate effectiveness of fundamental rights to citizens, a tension has arisen between the State and citizens in satisfying these rights. In this apprehension, there has been a growing number of judicial demands, aiming to obtain individual benefits from the state power, and one of the most relevant issues, dealing with sensitive matters for society, is linked to what is conceived as the right to public health. Consequently, it fell to the judiciary system to find ways to resolve the large volume of similar cases, with precedent being one of these solutions. In this work, the concepts of the right to health and precedent will be addressed through qualitative research, using a literature review as a method, as well as an analysis of cases that contribute to these in Brazilian jurisprudence. Therefore, it can be concluded in favor of the formation of new rights related to the provision of public health, based on precedent, its conditions, and the way it is formatted. Furthermore, the number of judicial actions related to the theme is also mentioned quantitatively, demonstrating the enormous relevance of the topic to law in general and to Brazilian procedural law in particular.