Judicialização do direito fundamental à saúde no Brasil: uma análise sobre o acesso à medicamentos não incorporados ao SUS e os critérios dos Tribunais Superiores para a sua concessão

Abstract

This research analyzes the judicialization of the fundamental right to health in Brazil, focusing on access to medications not included in the Unified Health System (SUS) and the criteria established by the Superior Courts for granting them. The study begins with the observation that, although the 1988 Federal Constitution established health as a right of all and a duty of the State, the realization of this guarantee faces structural challenges regarding pharmaceutical services and the incorporation of new technologies into the SUS, thereby driving the growing demand for judicial intervention. In this context, the study seeks to address the following problem: how do the jurisprudential criteria established by the Supreme Federal Court (STF) and the Superior Court of Justice (STJ) for the judicial granting of non-SUS-listed medications attempt to reconcile the guarantee of the fundamental right to health with the organization and sustainability of the public health system? The study operates on the hypothesis that these criteria serve as a mechanism to rationalize the judicialization of health by establishing objective parameters for granting such medications. The objective is to examine how the criteria set by the Superior Courts seek to balance the protection of the individual right to health with the preservation of public administration. To this end, a qualitative approach was adopted—utilizing bibliographic and documentary research—grounded in the analysis of legal doctrine, scientific articles, legislation, and relevant court precedents. The study concludes that established case law points to the use of technical and evidentiary parameters that enable access to non-listed medications without disrupting the administrative, financial, and technical- scientific structure of the SUS.