Neoconstitutionalism and right to health: some care to the analysis of judicial enforceability

Abstract

This work intends to analyze the influence of neoconstitutionalism to the realization of the right to health in Brazil, which, since the 1988 Federal Constitution, was raised as a fundamental social right. For this, it highlights the characteristics of contemporary constitutionalism to evidence the role of the judiciary and the technique of balance, key elements in the debate over judicial enforceability. After analyzing the particularities of this fundamental social right, verifying that the legal enforceability of the debate has been developed under a subjective dimension, this article points out some controversial issues, originated from the peculiarities of the right to health, especially in Brazil, which should be evaluated in the context of balances that gives a definitive character to the right to health in each case and also in the context of neoconstitucionalism.