The year 2024 brought landmark decisions from the Supreme Federal Court that directly impact the interpretation and application of Constitutional Law.
Several topics were discussed in the Supreme Court last year, such as public health, religious freedom, and legislative powers.
In this text, I want to explore with you the most relevant cases, highlighting their implications and their practical importance for society as a whole and for the legal profession.
Is childhood vaccination mandatory?
In the judgment of ADPF 1.123, the Supreme Federal Court reaffirmed that vaccination against Covid-19 for children is mandatory, arguing that the measure is essential for the protection of public health and safe coexistence in the school environment.
This Supreme Court decision suspended municipal decrees in Santa Catarina that waived the requirement for proof of vaccination for school enrollment.
In its reasoning, the Supreme Federal Court (STF) cited articles 196 and 227 of the Federal Constitution, which guarantee, respectively, the right to health and the duty of comprehensive protection for children and adolescents.
If we examine the constitutional text, we will see that Article 196 states that health is a right of all and a duty of the State, ensured through social and economic policies that reduce the risk of disease.
Article 227 of the Constitution imposes on the family, society, and the State the duty to ensure, with absolute priority, the rights to life, health, education, and family life.
The Brazilian Supreme Court (STF) highlighted that, although individual freedom is a fundamental right, it is not absolute and can be limited when it conflicts with collective rights, especially in matters of public health.
Furthermore, the Child and Adolescent Statute (Law 8.069/90) complements this protection in article 14, § 1, by establishing that health authorities must make vaccination of children mandatory in the cases provided for.
By ensuring that all children are vaccinated, the State reduces the risk of outbreaks of communicable diseases, protecting not only those who are vaccinated, but also those who, for medical reasons, cannot be immunized.
Is it possible to refuse medical treatment?
The relationship between religious freedom and decisions regarding medical treatments was also extensively debated by the Supreme Federal Court (STF) in the judgment of Extraordinary Appeal (RE) 979.742, of general repercussion.
The case solidified the understanding that adult and capable patients have the right to refuse blood transfusions for religious reasons, reinforcing the constitutional protection of freedom of belief, provided for in Article 5, VI, of the Federal Constitution.
There is no doubt that freedom of belief is one of the pillars of a democratic state governed by the rule of law, ensuring individuals the right to act according to their religious beliefs without undue interference from the state.
The Supreme Federal Court (STF), in turn, highlighted that this freedom includes the right to refuse medical treatments that conflict with religious values, provided that this refusal is exercised by an adult who is capable and fully informed.
This expression of will must be unequivocal, free, and clear, and can be made through advance directives, such as so-called living wills.
For example, a patient may register in advance that, in critical situations, they do not wish to receive blood transfusions, requesting therapeutic alternatives that respect their faith.
However, it is essential to note that the right to refuse is not absolute. It has limits when it involves third parties, such as children and adolescents. The Brazilian Supreme Court clarified that, in these cases, the principle of the best interests of the child must prevail, allowing the imposition of treatments indispensable to the preservation of life, except when there are safe and effective therapeutic alternatives.
From a social standpoint, the Supreme Court's decision also represents progress in the recognition of religious diversity in Brazil.
If we observe daily life, communities like Jehovah's Witnesses, often associated with refusing blood transfusions, find legal support for their practices, which strengthens pluralism and tolerance in a multicultural country.
Medications Not Included in the SUS Lists: Exceptions and Rules
Also in 2024, the Supreme Federal Court (STF), when judging Extraordinary Appeal (RE) 566.471, addressed one of the most delicate issues in the context of the judicialization of health: the granting of medications outside the official lists of the Unified Health System (SUS).
The decision reaffirmed that, as a rule, these medications should not be granted judicially; however, it established clear and rigorous criteria for exceptional situations.
In its decision, the Supreme Court stated that Article 196 of the Federal Constitution is the starting point for analyzing this issue.
This is because the device ensures that health is a right of all and a duty of the State, guaranteed through public policies aimed at reducing risks and ensuring universal and equal access to health actions and services.
The problem is that this provision cannot be interpreted in absolute terms.
In practice, the right to health must be reconciled with the financial and administrative limitations of the State.
Thus, the Judiciary cannot replace the public policies designed by the SUS (Brazilian Public Health System), but it can intervene in exceptional cases, ensuring that fundamental rights are not violated.
What are the criteria for a court order granting access to medication?
For exceptional cases, the Supreme Federal Court (STF) has established cumulative criteria that must be strictly observed.
The requirements are:
- Registration with AnvisaThe requested medication must be registered with the National Health Surveillance Agency, guaranteeing its safety and efficacy.
It is important to point out that authorities cannot provide medication without this registration.
- Clinical indispensabilityIt is necessary to prove, through a substantiated medical report, that the medication is essential for the patient's treatment and that other options available in the SUS (Brazilian Public Health System) are inadequate.
- Scientific evidenceThe medication must be supported by high-level scientific evidence, such as randomized clinical trials or meta-analyses, demonstrating its efficacy, safety, and effectiveness.
- Administrative refusalThe patient must have sought the medication through administrative channels and received a reasoned denial.
- Financial incapacityThe patient needs to demonstrate that they do not have the financial means to afford the cost of the medication, without needing to prove indigence.
The criteria described above aim to ensure that judicial concessions do not compromise public health policies, maintaining the sustainability of the SUS (Brazilian Public Health System).
Ultimately, what becomes clear is that the Supreme Court's decision acknowledges that public health should be managed based on technical and financial criteria, but also ensures that, in exceptional situations, the State must address individual needs that cannot be neglected.
In fact, many times, litigation occurs due to administrative failures, such as delays in the analysis of requests by Conitec (National Commission for the Incorporation of Technologies in the SUS).
Finally, it is important to highlight that professionals specializing in Constitutional Law play a fundamental role in this context.
The solid theoretical foundation of this area allows for a thorough analysis of constitutional provisions and the development of effective legal instruments, such as the writ of mandamus.
For example, a well-prepared lawyer can file this constitutional remedy to guarantee their client's access to essential medications, respecting the requirements established by the Supreme Federal Court and ensuring the right to health in a technically sound and well-founded manner.
The issue of legal representation in universities.
Finally, the Supreme Federal Court, in the judgment of Direct Action of Unconstitutionality (ADI) 7.218, decided on the constitutionality of the creation of legal procuracies in state universities, highlighting the importance of this mechanism for the autonomous management of these entities.
The decision is based on Article 207 of the Federal Constitution, which enshrines the didactic-scientific, administrative, and financial and patrimonial management autonomy of universities.
In general terms, Article 207 of the Federal Constitution not only establishes university autonomy, but also links it to the inseparability of teaching, research, and outreach.
Thus, regarding the creation of legal procuracies, the Supreme Federal Court (STF) emphasized that their creation does not violate the principle of the unity of public advocacy, provided that their functions are limited to the judicial representation and legal advice of the institutional interests of the university, without interfering in other competences of the state procuratorate to which the institution is linked.
Furthermore, the principle of the unity of public legal representation, provided for in Article 131 of the Federal Constitution, was carefully analyzed by the Supreme Federal Court.
The Court observed that the creation of university legal departments does not violate this principle, but rather complements it, provided that the actions of these departments are restricted to the internal scope of the university.
Universities, as centers for training and knowledge production, are gaining more prominence in addressing their own needs, strengthening their contribution to society.
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Delve deeper into the subject! Read the full text of the rulings:
ADPF 1.123: Decision reaffirming the mandatory nature of childhood vaccination against Covid-19 and its relevance for safe school coexistence.
RE 979.742: Establishes the right to refuse medical treatment for religious reasons for adults of sound mind.
RE 566.471: Deals with the exceptional conditions for judicial authorization of medications not included in the SUS (Brazilian Public Health System) lists.
ADI 7.218: Confirms the constitutionality of legal procuracies in state universities, highlighting university autonomy.
Deepen your knowledge directly from the decisions and understand how these rulings shape the application of Constitutional Law in Brazil.
