Ativismo judicial na promoção de Direito à saúde: impactos das decisões judiciais no orçamento público.

Abstract

The right to health constitutes a fundamental social right established by the Brazilian Constitution of 1988 and a responsibility of the Public Power in the figure of the Executive Branch. It happens, however, that facing the inertia, negligence and inefficiency of the main responsible for its offering, the Judiciary has been acting in order to remedy this deficiency and to make real the right in question, which is an fundamental right to life and Human dignity, and its implementation is essential, which also represents the guarantee of the integrity of the constitutional order itself. In this way, the present monographic work was carried out with the objective of analyzing judicial activism in the promotion of the right to health, investigating its relevance and importance in guaranteeing this right alongside with the review of the main criticism on the issue, focusing on the relationship between public budget and reserve of contingencies, mainly. Therefore, supported by the method of deductive approach, the procedures of historical and observational techniques were adopted on the analysis of the evolution of the right to health and its current status within the Brazilian legal system, and the technique of bibliographical research was carried out, considering the analysis of doctrines, laws, cases, monographic works, papers and web sites. Thus, given the analyzed data and main findings, it was noted that the right to health, because of its importance, cannot be at the dependence of the Executive Branch, which shows itself quite ineffective in its provision and guarantee, and that, even facing the controversies raised by judicial activism in relation to the issue in question, controversies that range from disrespect to the principle of separation of powers to arguments based on the reservation for contingencies and budgetary limitation, the moderate judicial activism powered mainly by technique is capable to overcome such barriers, contributing to the realization of the right to health and the consequent integrity of the constitutional order.