A INAPLICABILIDADE DA TEORIA DO ESTADO DE COISAS INCONSTITUCIONAL NO SISTEMA DE SAÚDE BRASILEIRO
Tipo
Artigo
Data de publicação
2021
Periódico
Revista de Direito Sanitario
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0
Autores
Mastro Andrea G.F.
Falcone Patullo M.P.
Falcone Patullo M.P.
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© 2021 Universidade de Sao Paulo. All rights reserved.The Theory of the Unconstitutional State of Affairs has increasingly found resonance in the Brazilian constitutionalist doctrine, notably after its use in a recent trial of the Supreme Court. Part of the national doctrine defends that the Brazilian health system is an example of an “unconstitutional state of affairs” and that, therefore, it would be legitimate to argue that the Supreme Court should intervene in public health policy to stop the massive violation of fundamental rights. Using the literature review and hypothetical-deductive methodology, the objective of this article is to answer the following question: does the Theory of the Unconstitutional State of Affairs apply to the Brazilian health system? To this end, both concept and the assumptions of the unconstitutional state of affairs were defined. It was understood that the Brazilian health system does not fit the assumptions of this theory and, in conclusion, a warning was made to the need for careful and rigorous incorporation of this theory into our legal tradition, so that its use is not trivialized.