Intellectual property in the judicialization of pharmaceutical assistance: a structural demand in defense of the Brazilian National Health System

Abstract

This work investigates the participation of the Justice
System in the process of realizing the right to
health through the confrontation of two paths for
judicial action. On the one hand, the predominant
path, marked by the individualization of demands,
the inability to reach political failures that
determine the extent of health benefits provision and
the potential to disorganize the Brazilian National
Health System (SUS). On the other one, a structural
perspective which brings judicial interventions closer
to decisive conflicts that impact the consolidation
and sustainability of the public health system.
Based on the investigation of lawsuits requesting
access to ranibizumab and bevacizumab in Minas
Gerais, we analyzed the change of scenario that
would be expected if the Federal Supreme Court
made structural decisions when judging the Direct
Actions of Unconstitutionality 4,234/DF and 5,529/DF.
The results point to the importance of the Justice
System privileging a structural perspective.
In the current context, marked by increasingly
explicit attacks to the right to health, it is essential
that the Justice System participate in the process
of implementing SUS in a coherent way, aware
of the conflicts that define the possibilities of
building a universal public system. The economic
crisis, the worsening of the underfunding of health
(especially due to the Constitutional Amendment
95/2016) and the unsustainable price of new drugs –
resulting in their increasing participation in thetotality
of health expenditures – point to theneed for structural
issues to achieve centrality in the judicialization
of health.