Abstract

BRUSTOLIN, Alessandra; DONISETE MACHADO, Edinilson  and  CALDERON-VALENCIA, Felipe. Justiciability of Medicines: an Analysis of the Experiences in Colombia and South-Africa that Might Contribute to the Brazilian One. Opin. jurid. [online]. 2021, vol.20, n.spe43, pp.405-432.  Epub Nov 19, 2022. ISSN 1692-2530.  https://doi.org/10.22395/ojum.v20n43a17.

Recents studies indicate that the acting of the Supreme Federal Court might be contributing to the judicialization of health phenomena. This happens due to the wide interpretation of the Federal Constitution of 88 in regards to the hypotheses of the justiciability of law. Because of this, this research promotes a comparative analysis between Brazil, Colombia and South-Africa, analyzing how the foreig Courts have decided and how these experiences might help Brazil with the demands for medicines. As a methodology, this research made a combination of the deductive, comparative (of Pierre Legrand), and case study (of Robert Yin). THe study was able to conclude that the way decided by the foreign courts was heavily influenced by a big or small search for power by the judicial power for reclaiming the rights that extrapolate the Constitutional coverage of the right to health. The position of the South-African Constitutional Court, by limiting to justiciability in comparison with the Colombian Constitutional Court and the STF, which is more focused in solving the individual allegations, with a chance of incurring in risks for the Brazilian public health system in budget terms.

Keywords : fundamental rights; right to health; judicialization of health; medicines; decisions analysis; Constitutional Courts.

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