Public health funding and new tax regime: the unconstitutionality of article 110 of the Brazilian Transitional Constitutional Provisions Act

Abstract

Health is a public need that requires the concrete action of the State and mobilizes its financial activity. Therefore, the public health services are impacted by public finance law, which rules the distribution of resources. In this field, the Article 110 of the Brazilian Transitional Constitutional Provisions Act still deserves close analysis. The objective of this paper is to fill this gap by evaluating the constitutionality of said article. Within a theoretical framework based on the doctrine of human, social and fundamental rights, it uses empirical data to assess whether the effects of Article 110 that should probably radiate on the right to health are consistent  with the Brazilian Constitution of 1988. As a result, the realization was achieved that the right to health is a fundamental social human right, whose level of effectiveness cannot be regressed by any measure adopted by federated entities. It was observed that the Brazilian State fiscal effort, to provide public health services to the population, is beneath its economic capacity; and when the referred article allows for the reduction of this effort, it neglects the obligations assumed by the country and promotes deterioration of both public health and the fulfillment of the right to  health. The conclusion reached is that Article 110 is unconstitutional, and in order to avoid regression, the Brazilian Supreme Court should suspend its effects and declare its unconstitutionality, and that the Brazilian State should plan to progressively raise the level of expenses in the sector.