Alexy's right to equality and the Supreme Federal Court case on medication provision

Abstract

This study analyzes the right to health—one of the fundamental guarantees enshrined in the Federal Constitution—and the State's duty to ensure universal and equal access to services aimed at promoting, protecting, and restoring health. The complexity of healthcare provision becomes evident when considering the Administration's inability to provide comprehensive care for the entire population. Service inefficiencies led to the judicialization of healthcare, as individuals began seeking judicial intervention to resolve specific cases. However, when resolving individual cases, judges risk violating the principle of equality, potentially giving rise to injustices. In his work *A Theory of Constitutional Rights* (*Teoria dos Direitos Fundamentais*), Robert Alexy addresses the general right to equality, introducing the concepts of factual equality and legal equality, which must be upheld by both the legislature and the courts. Consequently, this study draws a parallel between Alexy’s theory regarding the right to factual and legal equality and the case concerning the provision of medication currently pending judgment before the Supreme Federal Court. The recognition of "general repercussion" status in Extraordinary Appeal (RE) No. 566.471 underscores the issue's significance for Brazilian society, which seeks uniform treatment for users of the Unified Health System (SUS).