Constitutional jurisdiction and the effectiveness of the fundamental right to health

Abstract

The Constitutional Jurisdiction and the Enactment of the Fundamental Right to Health are important for understanding the expression of the Constitutional Jurisdiction in present day and the way in which the fundamental right to health is treated by Brazilian Courts. This paper points out the construction and evolution of the Constitutional Jurisdiction from a historical aspect and analyzes its Democratic legitimacy, which validates the Fundamental Right to Healthcare in Brazil. This fundamental right emerges from the transformations of the State, from Liberal to Social, in where social rights make way to the Judiciary. With the model of the Democratic State of Law, embodied in the model of an Active-Responsive State, focused on participatory democracy, the Constitution came to recognize several rights, giving special emphasis on the right to access the justice system, which consequentially influences health care treatment. Furthermore, the Brazilian Supreme Court holds the most relevant decisions on this subject, binding all other decisions in lower courts. Therefore, the Constitutional Jurisdiction transcends its functions vis-à-vis others, becoming an organ of the democratic outcry aimed at the realization of fundamental rights, giving special attention to the right to health.