Proteção constitucional do direito à saúde na jurisprudência interamericana sob a óptica do constitucionalismo regional transformador

Abstract

The present work emerges from the concern raised around the protection of the fundamental right to health, mainly in the context of legal demands in inter-American jurisprudence. Furthermore, we intend to understand how to overcome the individualized and privileged conception of health protection to think about increasingly collective protection, taking into account the global need in which we are part. Global difficulties require global solutions and the legal system needs to regulate to promote more protective responses to individuals. Within the historical and legal context, we observed multiple articles and decisions and, in this study, we aim to understand how the defense of the fundamental right to health has unfolded during these last years in inter-American jurisprudence, including in the midst of the pandemic. The Ius Constitutionale Commune in Latin America is based on transformative constitutionalism to seek references that materialize the recognition of the superiority of fundamental rights standards, including health, with a focus on the most unequal region in the world. Latin America has a history of profound social inequalities, as well as a lack of implementation of the broad list of fundamental rights that are often outlined in their respective charters. The object of study outlined here, therefore, focuses primarily on the fundamental right to health in the light of transformative constitutionalism. For a proper understanding, we conducted a bibliographical review that addressed the concepts of fundamental law, transformative constitutionalism, the impact of the Inter-American Human Rights System, in addition to the jurisprudential analysis of the most relevant actions on the subject in the Federal Supreme Court (STF) and the Federal Court Inter-American Human Rights. As a result of this research, I argue that the right to health is, undeniably, a fundamental right that requires protection, and that the collective interest must prevail over the private, especially in the decisions of inter-American judicial bodies, corroborating the view on the importance of protection of human rights and transformative regional constitutionalism for its real implementation