Tutela jusrisdicional do direito à saúde: uma análise da consistência da ADI 1.923/DF à luz da teoria da proporcionalidade de Robert Alexy

Abstract

To analyze the decision of the direct action of unconstitutionality ADI 1.923/DF filed against Law 9.637/98, by the Partido dos Trabalhadores (PT) and the Partido Democrático Trabalhista (PDT) in the light of the jurisdictional methodology adopted by the STF and adopted for the decision of conflicts between fundamental rights in the emblematic judgment of HC 82.424/RS, facing the main aspects of Robert Alexy's conception about the interpretation of fundamental rights in the context of its consideration and proportionality examination. To demonstrate that the authors of ADI 1,923/DF alleged, in summary, that Law 9,637/98 incurred in the following constitutional violations, without presenting the issue of health as a right of citizenship: 1) offense to the duties of providing health services, education , protection of the environment, historical heritage and access to science (arts. 23, 196, 197, 199, §1, 205, 206, 208, 209, 215, 216, §1, 218 and 225 of CF/88); 2) impersonality and State interference in associations (arts. 5, XVII and XVIII, and 37, caput of CF/88); 3) non-compliance with the duty of bidding (arts. 22, XXVII, 37, XXI and 175 of CF/88); 4) offense to the principles of legality and public competition in personnel management (arts. 37, item II and X and 169 of F/88); 5) non-compliance with civil servants' social security rights (art. 40, caput and § 4, of CF/88); 6) non-submission and external controls (arts. 70, 71 and 7 of CF/88); and 7) restriction of the performance of the Public Ministry (art. 129 of CF/88). To demonstrate that the Federal Supreme Court limited itself to analyzing the issue from the perspective of the provision of public service by social organizations and the constitutional limits of transfer of the provision of public services by the State to Social Organizations, without facing the issue of health as a fundamental right and its legal nature as a citizenship right. By emphasizing the STF in the judgment that “the political majorities prevailing in the pluralist democratic game can put their government projects into practice, shaping the profile and instruments of public power according to the collective will”, it failed to adequately face and substantiate the true legal nature of health in the Federal Constitution/88, thus allowing extremely elastic interpretations of the provision of health services by “non-state public” entities, reducing the issue of health to the mere provision of public service of a marketing nature. To show that the STF did not balance constitutional principles and examine proportionality in the realization of the fundamental right to health. demonstrate that the jurisdictional protection of health is linked to the hermeneutic process that gives meaning to the texts of health protection norms in the light of a decision-making methodology. Filter the decision in the light of fundamental rights, with the theoretical basis of Robert Alexy, especially his dogmatic concern with the interpretation of fundamental rights. Make it evident that health was treated as a consumer product in the judgment of ADI 1923/DF and not a right of citizenship as was the political choice of the 1988 Constituent Assembly when building the entire Title VIII, Chapter I, Section II of the Magna Carta. Demonstrate in detail that the Federal Supreme Court adopted the jurisdictional methodology to be adopted for the decision of conflicts between fundamental rights in the emblematic judgment of HC 82.424/RS. From the Legal Theory proposed by Robert Alexy, cited as a theoretical reference for the balancing technique and the proportionality examination of a new paradigm of Brazilian constitutional jurisdiction, to point out the misunderstanding of the ratio decidendi by the STF in not facing the health issue as a theory of fundamental rights, with the application of a balance of constitutional principles and the examination of proportionality in the realization of the fundamental right to health