Right to health: an analysis of the limits of judicial activism for the effectiveness of access to health

Abstract

This study has as main objective to understand the possibilities of judicial activism to promote the effectiveness of the right to health. Thus, it is considered that the right to health, as provided for in Article 196 of the Federal Constitution, ensures access to public health policies with the universal and integral care of the population, for the minimum conditions of quality of life. However, as the public power is silent on its constitutional duty to guarantee health care services, in a manner sufficient for the real effectiveness of the right to health, it seeks to understand judicial activism as a means of enforcing the right to health, through the exercise of the jurisdictional function of the State. At the same time, it is questioned what would be the limits for a judicial decision to determine the execution of public health policies in a suitable way with the limitations of the State. To do so, through the analysis of academic papers on the subject, as well as on higher judicial decisions, we proceed the analysis of social rights, the fundamental right to health, to be possible to conclude about the possibilities of judicial activism in the effectiveness of the right to health.