A Judicialização do Direito a Saúde: a necessidade de parametrização a partir dos modelos de Brasil e Argentina

Over the past twenty years there has been a growing transformation in judgements made by Supreme Courts in various Latin America countries on the various fundamental human rights claims, as the growth of such demands is greater than in any other region. In this context, the judicialization of the right to health, specifically in Brazil and Argentina, is the focus of study of this article. The general objective is to analyze, from the identification of systematic characteristics in the judicialization of the fundamental human right to health between Brazil and Argentina, the need for parameterization of the constitutional action of the judiciary in the resolution of such demands. Thus, in view of the weakening of the welfare society project, there is evidence of the wear and tear of the service models established by it, especially in the area of health, as they have: besides a public component, also a private sector of high technological complexity and restricted to consumption within market mechanisms. The main difficulty factor in analyzing the phenomenon of judicialization of health, whether in Argentina or Brazil, is that there is not a single cause of the phenomenon, but reasons of varied origins ranging from neglect, lack of coverage, negative treatment. or medicine or even the attempt to impose on the State the obligation to provide high cost experimental treatments without guarantee of safety or effectiveness, but of great budgetary impact. Therefore, it is urgently necessary to establish a parameterization mechanism that is possible for the Judiciary Power to act in harmony with constitutional precepts, in order to enforce and not obstruct the human and fundamental right to health. In the present article a deductive approach method and a comparative procedure method were adopted, developed using a direct documentation technique, through bibliographic and documentary research, with the corresponding sources receiving a qualitative approach.