A reserva do possível e sua limitação ao direito fundamental à saúde

Abstract

This study analyzes the right to health in Brazil, emphasizing its nature as a fundamental right enshrined in the Federal Constitution of 1988 and the challenges faced for its effective realization. The research addresses the structure and functioning of the Unified Health System (SUS), highlighting management and funding issues that impact service quality. The increasing judicialization of health is also discussed, reflecting citizens’ attempts to secure access to treatments and medications through the Judiciary, revealing the limitations of the SUS. The concept of "reserve of the possible" is examined in relation to state action in health demands, considering the associated costs and the jurisprudence of the Superior Court of Justice (STJ). The conclusion underscores that, although the right to health is constitutionally guaranteed, its implementation faces significant challenges. The study highlights that applying the "reserve of the possible" is crucial to acknowledging the budgetary limitations of the state, necessitating that the Judiciary operates with a balance between protecting fundamental rights and financial constraints, seeking solutions that provide dignified and effective care within the possibilities of the public health system. The methodology adopted for this study is qualitative, with a detailed analysis of criminal legislation and a review of legal literature.