A Eficácia do direito à saúde

Abstract

This article aims to provoke reflection about the effectiveness of the health‟s right in Brazil. In the beginning, seeks the concept of health, a complex notion with great reflection in understanding how the health practices operates. Then goes to a historical analysis of the positivation of the health‟s right, culminating in the art. 196 of the Federal Constitution of 1988. In addition to the health‟s right, the new policy letter recognizes various social rights, and the health promotion becomes a State‟s duty. However conformism and impunity has checkmated the controlling power of the constitution. The maturation of Brazilian institutions has raised the need for special protection of human dignity and the health‟s right, essential to a dignified life. When, however, the state does not provide the health‟s right as provided by law, the person concerned may demand it through the courts. However, there are limits to this feature, since one cannot demands the impossible. On the other hand, the Brazilian State has, then, to rely on German theory of the reservation of possibility to evade the constitutional duty to promote public health. It is necessary, therefore, that the state seeks through the Executive and Legislative maximum effectiveness of this law, the judiciary being placed as a guarantee that at least the minimum to be provided with a view to a real effectiveness of the health‟s right in the fundamental law of the country.