The Principle of the Reservation of the Possible and the Fundamental Right to Health

Abstract

Current research underlines specifically the principle for health access, a principle involving equality and the dignity of the human person. Discussion deals with the right to health as a positive priority that should be abided by the State as an indispensible requirement for the assurance of the constitutional aim on the dignity of the human person, actually one of the most important icons of fundamental rights. Due to the lack of abidance to the right to health by the Brazilian State, the need for the intervention of the Courts is underlined, putting the State under obligation to promote total attendance to health. In its defense in the courts the State has always brought forth the principle of the reservation of the possible. The guidelines employed by the Supreme Federal Court were analyzed to produce the necessary calibration with regard to the abidance of the principle of health protection countering the limitation of public resources to attend to social needs. Current research shows that the principle of the reservation of the possible cannot go against the principles and obligations of the government, among which may be mentioned the right to promote health. Current analysis is therefore to enhance the functions relevant to constitutional principles, especially, access to health, and its juridical application as an instrument of feasibility of the human dignity principle with the systematization of several principle to compose a coherent body which is capable of disciplining the application of the principle mentioned above and decision-taking by the Courts.