THE DILEMMA OF THE RISE OF SOCIAL RIGHTS TO THE STATUS OF FUNDAMENTAL RIGHTS IN BRAZIL: A STUDY ON THE REALIZATION OF THE RIGHT TO HEALTH

Abstract

With the advent of the Universal Declaration of Human Rights, social rights began to have a strong impact on the international arena, generating minimum guidelines for a Democratic State of Law. In Brazil, the broad institutionalization of these rights was affirmed in the 1988 Constitution, proclaimed as a legal framework for democratic transition, being responsible for the rise of social rights to the level of fundamental rights. However, there are some divergences and gaps in the realization of these rights at the factual level, especially the fundamental right to health. Considering these incongruities in the implementation and realization of the right to health in Brazil, the following problem arises: to what extent does the relativization of social rights, especially the right to health, violate the discourse of well-being and social justice, implemented by the Brazilian Constitution? To search for possible answers, the deductive method was used, based on the analysis of bibliographic material with a qualitative approach, with the objective of improving ideas through indexed information on the present theme. It was concluded that the perception that social rights have a merely programmatic normative character is mistaken. In this sense, the relativization of the right to health must comply with legal criteria, given that social rights are recognized as pillars of the set that makes up the existential minimum. Regarding the subsumption of judicial decisions involving the right to health, it was concluded that they should be weighed according to the specific case. The application of the Principle of the Reserve of the Possible, on the other hand, must occur at the request of the State and supported by evidence that proves the budgetary incapacity of the Public Power.