A judicialização do direito à saúde

colisão entre princípios e meios de resolução

Abstract

The biggest degree of social efficiency of  the right to the health erected with the Federal Constitution of 1988 has make so that it increased the number of judicial lawsuits between citizens and public beings tending to getting rendering activities of the State (lato sensu),being a current, in these demands, the discussion involving the colli­sion between prncipies with constitutional foundation, among which they detach it, from a side, of the universality of access, of the entirety of assistance and of the dignity of the human person, and, of other, it of the separation of powers, of the reserve of the possible and of the equality rendering,  subsidizing, respectively, the potentialization or the restriction of that right. The solution for the collision between these principies passes, necessarily, by the application of the precept of the proportionateness, in his three partia! precepts -  adaptation or suitability, necessity and proportionateness in strict sense-, and of the law of the ponderation, as well as by the examination of the theory of the restrictions and of the narrow or spacious theorys of the type, proceedings that will be examined in this work.