Ativismo judicial e judicialização da saúde no Brasil: medicamentos de alto custo

Abstract

This study investigates the legal, institutional, and financial contours of the judicialization of the right to health in Brazil, with a special focus on claims for highcost medications. To this end, the research adopts a qualitative approach, combining documentary analysis, literature review, jurisprudence study, and analysis of exemplary concrete cases. It begins with a historical analysis of fundamental rights, emphasizing the consolidation of the right to health as a social right by the 1988 Federal Constitution. Given the structural difficulties and state inefficiency in realizing this right, the role of the Judiciary and the rise of judicial activism as an instrument to correct public omissions are highlighted. The study examines the limits and possibilities of this judicial role in light of the theory of the minimum existential and the reserve of the possible, as well as the jurisprudence of the Federal Supreme Court in Themes 500, 793, and 1234. Additionally, it presents the emblematic case of Maria Júlia and the drug Zolgensma as an illustration of the concrete challenges faced by the Judiciary. Finally, the work proposes viable alternatives to judicialization, such as administrative health protection and interinstitutional technical nuclei, highlighting the potential for dialogue among the branches of government to build an efficient, equitable, and constitutionally adequate public health system.