The Right to Health, Judicialization, and Equity in SUS

The three principles of the Unified Health System (Sistema Único de Saúde - SUS) – universality, integrality, and equity – underlie most analyses of the Brazilian public health system. How these three elements combine to guarantee the right to health is a question that allows different interpretations. One possibility is through the lens of judicialization, a theme treated very competently by Octávio Ferraz (2021), based on consistent data and a meticulous theoretical discussion. The universal public system signified an enormous advance in guaranteeing the right to health in Brazil, giving previously excluded populations access to public health services in their distinct levels of complexity. With it, Brazil managed to create a universal system, accessible to all - something that is unquestionable. Data from 2019 demonstrate that 74% of the population depend on the public system for health care (the ‘ SUS- dependent’ population), while 26% have some sort of private health plan (IBGE, 2020). their and

public system -despite the budgetary limitations that any government faces and with which health systems from all over the world have to deal.
However, equity has been the least debated principle of SUS, both administratively and politically. Related to the concepts of equality and justice, it assumes that equality of access to the system has not eliminated health inequalities, arising out of other social inequalities which affect the chances of individuals from different groups getting sick or dying. Health inequalities will always exist, but the system has to fight 'unjust inequalities', which involves equity in the distribution of resources in favor of individuals in situations of greater vulnerability (DUARTE, 2000).
Although it does not present a discussion of the three principles of SUS, Ferraz's analysis (2021) focuses on equity and how this combines with universality and integrality. His study analyzes how equity is neglected in the responses given by the Brazilian judicial system to the process of judicialization. According to him, judicialization increases inequalities in access to the right to health in Brazil, since it guarantees access to medicines and treatments "to a minority of people who are capable to litigate" (FERRAZ, 2021, p. 03), transferring resources from the underfunded public system to those who already have financial and informational resources. It thus involves a process which reinforces the persistent inequalities in Brazilian society. This is Ferraz's central argument (2021).
To demonstrate his argument, Ferraz (2021) mobilizes the knowledge which he had accumulated over two decades of studies on the topic 1 . He uses primary data collected between 2009and 2010(FERRAZ, 2011, secondary data from the report of the National Council of Justice for 2014 to 2019 (CNJ, 2019a), as well as secondary data from different regional realities and periods, presented by an enormous range of articles and research reports. Much data and many articles were analyzed, in a careful effort to aggregate the available information.
He opens the book with a synthesis of the historical process of the creation and structuration of the Brazilian Unified Health System, emphasizing the political _______________________________________________________________________________________________________________ 1 Octávio Ferraz is one of the main specialists in judicialization of the right to health in Brazil. His book, the subject of this review, was also reviewed by another important researcher and specialist of the theme, Natália Pires de Vasconcelos, who dialogues with the field of Law in the journal Modern Law Review (VASCONCELOS, 2021). Here, I focus on the debate in the field of public policies, especially on the question of equity in SUS. In presenting the data about judicialization in Brazil, Ferraz (2021) demonstrates both its exponential growth in numerical terms and in relation to public expenditure. Using estimates calculated through secondary data, he states that around 3% of total public health expenditure is spent on judicialization.

Vanessa Elias de Oliveira
Considering the tendency for growth presented by the historical data, this figure is The Right to Health, Judicialization, and Equity in SUS concerning. Above all because, as the book demonstrates, this judicialization has provided access to medicine and services to the economically most favored part of the Brazilian population.
What the author calls the 'right to everything' has guaranteed: medications that does not appear on the SUS list (they are not offered to the population through the public health system); high cost, experimental, or for 'off label' usage (for treatment not listed in the drug note); extremely expensive treatment, which benefits few to the detriment of many -more specifically the so-called 'A class', which covers around 7% of the population. In short, the 'right to everything' has benefited the wealthy, especially because very few individuals from the lower classes have the informational and financial resources to use the justice system -as data on access to justice demonstrate.
This picture of unequal access to justice has been altered over the years with the dissemination of the judicial path, increasingly used by the less privileged social groups through the Public Defender's Office or the Public Prosecutor's Office (CNJ, 2019b), judicially and extrajudicially 2 . However, the regressive profile of judicialization has remained, for which reason Ferraz (2021) is correct to affirm that judicialization benefits the better off in a context of inequality of access to justice, further increasing health inequalities.
Nevertheless, his criticism of studies which praise the judicial path as a way of access to the right to health sounds excessive. These cited studies do not defend the 'right to everything', but rather the Judiciary as a path to guarantee a right. It is the Judiciary itself which actually defends the 'right to everything' through its judicial decisions. By focusing its criticism on the academic debate, the book opts not to discuss the institutional role of the Judiciary in confronting judicialization - The aforementioned criticisms do not diminish the importance of the book for advancing the debate on judicialization in Brazil because, aside from analyzing the phenomenon itself (who judicializes and what is demanded), it empirically analyzes its effects. The data is convincing in its demonstration of the regressiveness imposed by judicialization. This is the principal contribution of this work, which complexifies the academic discussions and, most importantly, adds scientifically based elements to the public debate. However, as the author himself emphasizes, the availability of information is still limited and therefore future studies, with more data than currently available, can expand our knowledge about the phenomenon he describes: the regressiveness of judicialization and how it has behaved over time.
Another important contribution of the book is the argument that the problem is located in the courts, but the solution will not come from there -on the contrary, it must come from politics. In a context in which there are no politically  defined criteria regarding what the right to health guarantees, it is up to each judge to decide, based on their own convictions and constitutional interpretations. We will only escape from this trap when the political world clearly defines 'how' equity should be achieved, which is an infra-constitutional question that is (re)defined on a daily basis through politics and the process of public policy implementation.
Therefore, politics gains centrality and can either increase or undermine the equity of the public health system. It is important that a book written by a Law researcher highlights this issue.
Ultimately, the last question which the book raises is: how to achieve a political consensus about 'what' should be guaranteed by SUS, especially in a context in which universality and integrality are important conquests of redemocratization?
As the book demonstrates, judicialization has the impact of interfering in equity, but in a negative way. Debating politically how to achieve equity in/through the public health system is now a central question, which also includes defining what the courts may or may not allow in order to undermine health inequalities. It will be a hard task to reach a 'minimum core' definition of what the right to health should encompass. Thus, what the courts can best do is to avoid the adoption of what Ferraz calls a "more interfering form of right to health adjudication" (FERRAZ, 2021, p.

299).
Judicialization in Brazil is intrinsically related to inequalities, negatively affecting the equity of the system: it results from unequal access to the justice system, which is more accessible to those who pay private lawyers and ensure the acceptance of their demands by the justice system; and it generates health inequalities in a public system that suffers from lack of resources, which ends up expanding existing social inequalities even further. For this reason, Octávio Ferraz's book (2021) is a fruitful resource for the debate on the expansion of access to social rights in Brazil. And, as he concludes, this is a debate to be based not on the courts or judicial actors; it is necessary for political institutions to address this issue, keeping actors in the judicial system away from this process. Politics is capable of guaranteeing rights, as demonstrated in the struggle for health care in the 1988 Constitution. Thus, "if politics is not that bad, and litigation is not that great, it seems inapposite to transfer powers of substantive decision-making from the former to the latter" (FERRAZ, 2021, p. 305).