STATE RESPONSIBILITY ON PROVIDING HIGH-COST MEDICATIONS THROUGH THE LENS OF THE PROPORTIONALITY TEST

Authors

• Morgana Silveira Traslatti

Abstract

Health as a Fundamental Social Right was established through the Federal Constitution of 1988 in Brazil, a moment in which the adoption of the Democratic Rule of Law took place and the State transitioned from a mere spectator to the provider of effective obligations. However, the belated adoption of a model of a State ensuring social rights reflected in a society marked by inequality, making the achievement of the fundamental goal of eradicating poverty distant. The effects of social inequality are clearly directed towards the State, which has budgetary limitations for public policies implemented by representatives of the legislative and executive branches democratically elected, resulting in the mass judicialization of actions seeking to enforce fundamental social rights, raising doubts about the legitimacy of the Judiciary in determining the allocation of public funds. Regarding the state's obligation to provide high-cost treatments, supported by the Fundamental Social Right to health, the question arises: can the State's duty be relativized when, from the perspective of the proportionality test, the provision directly impacts the guarantee of other fundamental social rights due to budgetary constraints? In this context, it is concluded that judicial intervention within the scope of public policies is not justified when it fails to consider the impact that the supply of high-cost medicines will have on the achievement of public policies that aim to achieve other fundamental social rights. The approach method adopted is hypothetical deductive. Bibliographic and comparative research is employed.