Judicialização da saúde e racionalização das demandas: uma análise da jurisprudência do Superior Tribunal de Justiça sobre direito sanitário de 2017 a 2020

Abstract

The present research is developed from the following question: "in the context of judicialization of health, what is the degree of rationality of the decisions of the Superior Court of Justice (STJ) regarding this right after the edition of Resolution No. 238, of 06/09/2016, by the CNJ"? The justification for this investigation lies in the importance of the right to health and the search for its protection by the Judiciary, which is conventionally called judicialization of health, a phenomenon expressed in different types of claims, as well as in the duty of the Judiciary to rationally justify its decisions in a Democratic State of Law, since its legitimacy is argumentative. Adopting as theoretical reference the thought of Robert Alexy - in particular, his works Theory of Legal Argumentation (2020) and Theory of Fundamental Rights (2017), the general objective was set to infer the degree of rationality of judicial decisions regarding the right to health, judged in the period from 2017 to 2020. The research consisted of two phases: the first, theoretical and bibliographical, aimed to investigate the essential concepts for the study, such as the definition of fundamental social rights, the fundamental right to health and its increasing judicialization in the country, as well as central concepts of the theory of fundamental rights and the theory of legal argumentation, both by Robert Alexy. The second part consisted of exploratory-qualitative empirical-jurisprudential research, analyzing the decisions of the STJ, within the scope of the right to health, according to the chosen clippings. Based on Aulis Aarnio (1991), Robert Alexy (1998), Neil MacCormick (2008) and AleksanderPeczenik (2009), rationality was focused on two prisms: logical and substantial. At the end, it was concluded that although it has been found an argumentation focused primarily on institutional arguments (with the exception of doctrine), this reality did not compromise its level of rationality, since the logical rationality (in 91% of the decisions), as well as the substantial rationality (in 82% of them) were high.