A Efetividade do Direito à Saúde: entre a reserva do possível e o garantismo

Abstract

The present study aimed at a brief analysis of some of the Supreme Court judged in terms of the fundamental right to health in light of the theory of reserve for garantista and the theory of the constitution, in order to determine whether the arguments used to support decisions of this Court in this matter, meet the assumptions of a rigid constitution or garantista. The position of the Supreme Court oscillates between assertion of normative force of the Constitution and the consequent denial of programmatic nature of the constitutional consecrating the right to health, and the possibility of demonstration, in court, that the claim of the author is not covered by health policies formulated by the SUS, or who causes harm to public order and health. Arguments of an economic and utilitarian nature are able to impede the effectuation of a fundamental right, what matters ultimately, denial of constitutional supremacy and stiffness by the judiciary, which contradicts the very nature of judicial function in a constitutional state of law.