Right to health in Brazil: use of reserves and basic human dignity in the decisions of the Brazilian Superior Court of Justice (2010-2016)

Abstract

This paper aims at analyzing the characteristics of decisions from the Brazilian Superior Court of Justice between 2010 and 2016, related to the applicability of provisions of contingency reserves and basic human dignity to the right to health in Brazil, from the relationship between law and politics. The study uses the empirical approach of research in law, applying qualitative methods and document analysis. The data corpus is composed by fifteen decisions collected from the Superior Court electronic database. The analysis of data shows that the Court’s understanding on the implementation of the right to health is characterized by the argument of no “opposition of contingency reserves to basic human dignity” with regard to health matters, by the determination that the Executive has the obligation to perform, and the admissibility of the blockage of public funds, primarily when it comes to ensuring access to medicines. Moreover, in the judicial decisions studied in this paper the legal-political refutation is highlighted regarding the idea of separation of powers as an obstacle for the Judiciary Branch edit a command on matters of social rights, as well as determine the legal contents of basic human dignity that is part of the fundamental right to health and, in this way, establish the extent of the state’s positive social benefits.