A Teoria Discursiva o Debate da Judicializaçao da Saùde No Brasil - Uma anàlise sobre a questao dos medicamentos.

This study aims to analyze the phenomenon of judicialization of public policy in the Brazilian Democratic Rule of Law through the analysis of court cases in which people ask for free medicines from State. The study begins by the presentation of theme, occasion in which we demonstrate the great number of court cases asking for free medicines in Brazilian Courts in the last decade. The right to health is the central theme of this research and it is defined as a social fundamental right which can be carried out even by individual process as well as colective one. The protection of the health right depends on the State social agreement. Then, in order to understand the Brazilian State structure it is necessary to examine the idea of State in the 1988 Constituion. In this sense, we analysed the judicialization of politics based on the principle of separation of powers. We argue that the judicialization phenomenon is a consequence of the lack of democratic measures. We propose that the way to minimize this problem is in the development of participation measures which could promote the individual contribution for shaping the rules that govern its own life and determine their autonomy. Through the literature review presented, we analyze the Judiciary control over public policies, which are an Executive liability. The public health protection, as fundamental right, requires from the State positive benefits established by public policies. The non-fulfillment of this requirement leads to the legal interference of the Judiciary Power in the State’s public policy as its constitutional duty. Concerning to this, we analyze the social character of the need for drugs and the social costs of the State’s omission. In this study we analyze empirically the cases judged by the Brazilian Supreme Court between the years 2000-2012 and by the Regional Court of the Rio Grande do Sul State between 01/01/2000 a 01/01/2013.