O dever constitucional do Estado em fornecer medicamentos : uma análise da evolução da jurisprudência do Supremo Tribunal Federal

Abstract

This monograph analyzes the evolution of the jurisprudence of the Brazilian Supreme Federal Court (STF) on the constitutional duty of the State to provide medicines. The study investigates whether there was a construction of a jurisprudence focused on objective criteria in the decisions of the STF on the subject and discusses the impacts of judicialization on legal certainty, budgetary balance and the implementation of the right to health. The research adopted the deductive method, with documentary, bibliographic and jurisprudential analysis, analyzing the STF's general repercussion decisions that dealt with the provision of medicines and the right to health. The results demonstrate that, historically, the Court prioritized the implementation of the right to health without criteria, which favored the so-called "sentimental jurisprudence". However, recent decisions point to the establishment of objective requirements, such as the need for robust scientific evidence, proof of the denial of supply and the impossibility of substitution by another drug available in health policies. This change aims to reduce the negative effects of the judicialization of health without, however, compromising the guarantee of fundamental rights. It is concluded that the evolution of jurisprudence seeks a balance between the right to health and the organization of the public system, promoting greater legal certainty and efficiency in the allocation of resources.