Teoria do estado de coisas inconstitucional na efetivação da saúde na macroregião de Dourados/MS

Abstract

The objective of this study is to analyze the assumptions of the institutional omission regarding the guarantee of the fundamental right to health, demonstrating that, in the face of the disregard experienced by the people, the implementation of said right must be achieved by judicial channels, presenting, as one of the alternatives, the raising of the Theory of the State of Things Unconstitutional, since it authorizes dialogical structural judicial activism. Initially, the constitutional rights are approached from a historical point of view, with respect to construction and its evolution, notably by milestones between the centuries, with the French Revolution, First and Second World War, being evidenced, by period, what rights were conquered, for to achieve the range of rights that we currently have. Next, the importance of the right to health is demonstrated, being recognized as a social right, currently listed in the bullet of Article 6 of the Federal Constitution of the Republic, as well as on the means made available by the Government to carry out said right , although they appear more on paper than in practice. The health perspective in the macro-region of Dourados, in the state of Mato Grosso do Sul, was also discussed, in order to analyze the chaotic situation experienced by the population of Ouro Preto, and to present alternative solutions to the problem, through the judicialization of the respective right . In the third chapter, it was evidenced the need for interference in the implementation of public policies by the Judiciary to protect the right to health, once it is a fundamental right and be affected by repeated omissions of the public power. Thus, finally, the need for direct intervention in the administrative sphere, which is typically the responsibility of the Executive and Legislative branches, has been demonstrated through the raising of the Unconstitutional State of Things. In order to understand this interference, an analysis is also made of the principle of the separation of powers from budget forecasting in the macro-region of Dourados and of the reserve of the possible, in view of the existential minimum, to understand the nontransgression of any constitutional, before the application of said theory in the elaboration and effectiveness of public policies.