The Legitimacy of Judicial Control of Public Health Policies and the Provision of High-Cost Medications from a Substantive Legal Perspective

Abstract

This work aims to analyze the legitimacy of judicial control over public health policies in Brazil, questioning the proactive attitude of the judiciary, especially the Supreme Federal Court, in judging lawsuits for high-cost medications against the State, in its individual service matrix. Given the growing phenomenon of the judicialization of health, the problem is whether the Court's interference in public health policies, which normally adopts a proactive (activist) stance, is legitimate in light of the democratic principle that constitutes the Brazilian Social State of Law established by the 1988 Constitution and the principle of separation of powers. The research is developed through a bibliographic review and uses theoretical frameworks that, within the scope of the philosophy of law and constitutional theory, adopt a substantialist perspective of law, such as Mauro Cappelletti, Castanheira Neves, Ronald Dworkin, and Luís Roberto Barroso. The conclusion points to the recognition of the legitimacy of judicial review of public health policies, in accordance with constitutional norms and social reality, given the need to promote social progress that remains obstructed in the majoritarian political process.