Influxos dos litígios estruturais na jurisprudência em tempos de crise: análise neoinstitucionalista das decisões estruturantes no Supremo Tribunal Federal diante dos problemas de concretização do direito fundamental à saúde durante a pandemia COVID-19

Abstract

The present work aims to carry out a critical analysis of the structuring processes in the Federal Supreme Court involving the implementation of public health policies in times of coronavirus pandemic. Structural disputes arise from problems rooted in society with multiple conflicting interests involved, which require a reform in social institutions so that the conformation of public values and organization of systemic structures occur. The political criticisms in favor of the structural decisions report the invasion of competence of the other powers and violation of the principle of separation of powers, according to an optimal formal-legalist. In order to guarantee the legitimacy of the structural decisions, the neoinstitutionalist model of judicial behavior is the best basis for judicial action in this litigation. The bipolar and essentially reparatory Brazilian civil litigation model does not meet the objectives of the structuring processes. It is necessary to reform the procedural instruments present in Brazilian legislation to produce a cooperative procedure that promotes institutional dialogue between the Powers. The structuring processes, which were preliminarily designed to conform values with a liberal matrix, were translated in Latin America and countries of the southern hemisphere to the realization of social rights. The social right to health in Brazil has historically suffered from cyclical, complex and polycentric problems, which highlights the nature of structural litigation. The COVID-19 pandemic has severely affected economic, political and social rights. The dysfunctional structure of institutions dealing with the right to health was made explicit. Public policies were judicialized and questioned in the Supreme Court. These disputes need to be critically assessed so that they can carry out structural reforms, and not just short-term remedial solutions. The study is essentially bibliographic, dialectical, systemic, hermeneutic and descriptive, of a qualitative nature, through doctrinal, historical and documentary evaluation, and comparative using a deductive method. It is concluded that structuring processes are legitimate instruments for carrying out structural reforms. In periods of crisis, such as the coronavirus pandemic, structural processes need to be carefully evaluated so that a series of systemic health problems and related Brazilian public policies can be repaired.