Jurisprudence in Brazilian Superior Courts and the right to health – progress toward rationality

Abstract

The right to health has been an object of intense court action in Brazil, with a growing number of lawsuits each year. This situation has led to debates on the reach of this fundamental and unalienable right, in addition to its repercussions in judiciary administration and public budgets. The current study examines the positions adopted by the Brazilian Federal Supreme Court and the Brazilian Superior Court in regard to the right to health. The paper includes an analysis of the jurisprudence of the two courts and classifies it into distinct phases according to material and chronological criteria. First, jurisprudence denied the judicial viability of the right to health. Later, it became a step in which access to material benefits involved in healthcare became understood as essentially unlimited. Currently, a conciliatory stance prevails between the urgent needs of the citizen in the public health system and observance of the rationality of public health policies, with some flexibility in specific cases.