A proteção constitucional do direito à saúde: os desafios jurídicos voltados ao acesso de medicamentos e tratamentos em meio aos impactos de ordem financeira

Abstract

Brazil, despite being a large and populous country, has had the Unified Health System (Sistema Único de Saúde – SUS) since 1988; however, the Brazilian legal system faces several challenges in guaranteeing the right to health. The general objective of this study is to present the configuration of the right to health in Brazil, highlighting legal obstacles and perspectives. The specific objectives are: to present the right to health as a human right; to demonstrate the health-related legislation in Brazil; and to analyze the legal challenges in the effective realization of the right to health. This study is justified by the fact that health is a right of all and a duty of the State; however, it presents shortcomings that generate criticism and judicialization by society. Consequently, it becomes challenging for both citizens and the judiciary, since, although health is a guaranteed right, existing failures lead to judicial intervention. Thus, the study is guided by the following research question: Has the judicialization of health in Brazil, in light of the challenges faced, proven to be effective and humane? The research method used is bibliographic, qualitative, and descriptive. Content selection was carried out through well-known platforms such as Scielo and academic repositories, as well as books and materials from government websites. The results indicate the importance of constitutional protection of health to ensure the fulfillment of health rights, as the legal sector faces challenges arising from lawsuits requesting access to medicines and treatments when users are unable to afford them due to the financial constraints faced by the SUS. The study concludes that the determinations and guidelines of the SUS must be enforced and updated in accordance with ongoing changes in the health sector, in order to benefit both users and the judiciary.