Direito à saúde no Brasil: parâmetros normativos para densificação de um conteúdo mínimo

Abstract

The judicialization of the right to health is a growing phenomenon in Brazil. The hard cases deal with medicaments and treatments not included in public policies of Brazilian’s health system, subject that was adressed by Brazilian Supreme Court in “Recurso Extraordinário” n. 566.471/RN. The judicial answer will be constructed by balancing, which demands an analytical structure offered by proportionality and its tests. However, for further legal rationality achieved by further objectification of the balancing, it is important to include the minimum core – standard that defines the intensity of deference and State’s argumentative onus. In this line, using the technical-legal method, the article offers the normative patterns that helps in the definition of the minimum core of right to health in Brazil. Before this, notwithstanding, it will be necessary to examine the comprehension of the minimum core professed by United Nations’ Committee on Economic, Social, and Cultural Rights.