Judicialization as access to the right to healthcare: considerations to the brazilian debate

Abstract

This article deals with the judicialization of medications as a means of access to the right to health, by analyzing two lawsuits involving terminally ill patients. The paper considers the voices of all actors involved in the case - judges, authors, defendants and public prosecutors - and desbribes the arguments backing their positions. For the debate on the guarantee of the right to healthcare as it applied in these lawsuits, the analysis draws on Martha Nussbaum’s ideas of capacity and dignity and Norman Daniels’s idea of opportunities. The need to protect the access to healthcare is a consensus, but the arguments raised by the defendants emphasized administrative issues, revealing a utilitarian tendency. The paper concludes that the Brazilian debate tends toward the maintainance of opportunities, so publicity and transparency in health policies are determinant for the decisions based on them to be considered as legitimate and fair, and may also influence the rate of complaints that the Judiciary receives.