The judicialization of the constitutional right to health: the conflict between the minimum existential and the reservation of the possible in the implementation of this public policy

This work has as main objective to verify if the State can fail to guarantee the promotion of the right to health, duly established in the Federal Constitution of 1988 due to lack of financial resources, and to observe how the Judiciary Branch should position itself in this nature. This article analyzes the emergence of second-generation social rights, the constitutional provision of the right to health, investigates the emergence of theories of reservation of the possible and the minimum existential and examines the jurisprudence on the subject in the Federal Supreme Court - STF. A bibliographical research was carried out based on the study of scientific articles published in the electronic means, the relevant laws and the decisions of the Supreme Court on the matter. It was concluded that the Public Entity cannot only allege lack of budget to not provide access to the right to health and that the Judiciary Branch, when issuing its decisions, must use reasonableness, proportionality and common sense, examining case by case , to privilege the right to health, without, however, harming other public policies, due to the excessive judicialization of health, which can also be harmful to the population.