Judicial protection of the right to health in the context of Covid-19 and populism in Brazil

Abstract

Background

The Covid-19 pandemic has brought new challenges to the health systems of Latin America. However, the institutions and mechanisms created by the Social State of Law were unable to confront these new risks. As a result of that, populist governments have used this crisis as an opportunity to deepen the high levels of inequalities through the appropriation of power, wealth and social welfare. Courts have also reacted in order to guarantee the right to health; however, many challenges remain.

Objective

To examine the challenges and opportunities of the judicial protection of the right to health in the context of Covid-19 and Populism in Brazil.

Methodology

Qualitative, descriptive and exploratory. Documentary research was carried out by reviewing databases such as Scholar, PubMed, and Scopus. Indexed articles, jurisprudence, legislation, and literature were also reviewed. Additional publications were also identified through other sources.

Results

There is an inversely proportional relationship between the intensity of the crisis and the level of judicial activism on the part of the Courts. Therefore, the more the scale and intensity of the crisis generated by populist governments in the context of pandemics, uncertainty, and inequality the more reflexive, and strategic courts should be and the more protection, defense and monitoring should be promoted in order to ensure the fulfilment of the right to the highest attainable level of health especially of the most vulnerable. On the other hand, the more compliance through the availability of health goods and services, and the more availability of health workers with better salaries, social security and working conditions the more resilient the State will be to face emergencies, which at the same time will promote fewer restrictions on fundamental rights.

Conclusions

Courts play a special role in protecting the right to health, especially in the context of emergencies and crises. States must adopt measures by using the maximum available resources in order to protect the right to the highest attainable standard of health.