THE JUDICIALIZATION OF PUBLIC HEALTH: AN ANALYSIS OF THE LEGAL CONSEQUENCES OF STATE OMISSION

Abstract

The right to health, constitutionally enshrined as a duty of the State and a fundamental right of all, faces serious challenges to its realization within the Unified Health System (SUS), where state omissions are evident, such as failures in providing medications, the lack of treatments, and insufficient hospital beds, which compromise universal and equitable access. In light of this, the general objective of this study was to analyze the legal implications of the State's omission in realizing the right to health, seeking to understand its concept, identify forms of omission, study relevant jurisprudence, and evaluate the effects of judicialization as a mechanism for guaranteeing this right. A bibliographic methodology was adopted, involving doctrinal and jurisprudential analysis. The results demonstrated that state omissions, such as excessive delays, lack of supplies, and inadequate infrastructure, constitute violations of the fundamental right to health, leading to the State's objective civil liability. It is concluded that the State's failure to ensure access to health, when the need is proven, breaches a legal duty and offends human dignity. Consequently, the objective civil liability of the State for the damages caused is imposed. Although judicial avenues are necessary to guarantee fundamental rights in the face of administrative inaction, it is imperative to strengthen public management and coordination among federal entities to overcome structural failures and effectively ensure the right to health for all citizens, as prescribed by the Constitution.