A reserva do possível no acesso ao direito fundamental à saúde

Abstract

It will be analyzed the achievement of the fundamental right to health by the Judiciary in the face of obstacles imposed by reserve of possible clause. Initially an introduction on the classification of fundamental rights is made. Scientific studies and jurisprudence, in Brazil and on other countries, indicates that there is a trend towards greater acceptance of the justiciability of social rights, particularly in developing countries. In these countries, democratic institutions, such as parliament and the government elected by the people, are unable to reduce the problems related to public health. So it is hypothesized that the State's argument scarcity of public resources should be checked strictly by the magistrate. Finally, it admits the possibility of the judiciary to implement the constitutional right to health in order to protect the existential minimum and the dignity of the human person.