Direito à saúde e o Supremo Tribunal Federal: mudanças de posicionamento quanto ao fornecimento de medicamentos

Abstract

The growing and excessive judicialization of the right to health has been the justification of public managers for the current public health system instability. Since the promulgation of the 1988 Constitution the referred fundamental right has progressively taken a more frequent place in the judiciary, mainly through measures which aim the supply of medicines. So as to consolidate the evolution of the theme, this article conducts a case law survey in the Federal Supreme Court, evidencing a change on the positioning and the current understanding of the Eminent Tribunal. It can be noticed that there was peaceful understanding that the right to health should be fully guaranteed. The excessive amount of judicial measures required a reflection on issues initially considered secondary. The limitation of budget provisions and the principle of reserve for contingencies were included in the debate. The Public Hearing No. 4, held in April and May of 2009, clarified specific points until then unclear and outlined new levels to base future decisions. Progress concerning the debates on the theme was noticed. The right to health continues to be guaranteed judicially, however, the decisions are much more concise and alert to the particularities of the concrete case, not confined to merely allegation of existence of the right.