Judicialization, public budgets, and access to medicines in Brazil: a documentary analysis from law and economics

Abstract

Objective: To examine how Brazilian law reconciles the individual right to medicines, evidence-based health policy, and the distributive consequences of judicial decisions. Method: A qualitative legal-documentary analysis was conducted using purposive sampling. The corpus comprised the Federal Constitution, Laws No. 8,080/1990, 12,401/2011, 13,655/2018, and Complementary Law No. 101/2000; National Council of Justice documents; and the Federal Supreme Court decisions in General Repercussion Themes 6 and 1,234, consolidated in 2024. Documents were coded according to entitlement, institutional competence, evidence, opportunity cost, federal allocation, and implementation. Law and Economics was used as an analytical lens, without reducing fundamental rights to monetary calculation. Results: The 2024 precedents preserve exceptional judicial protection while imposing evidentiary requirements, deference to health-technology assessment, allocation rules among federal entities, and information-sharing mechanisms. This design can reduce inconsistent orders and transaction costs, but access may be restricted if technical evidence is interpreted mechanically or if administrative procedures remain slow. Conclusion: Legitimate adjudication should combine rights protection, reasoned scrutiny of administrative decisions, scientific evidence, budget transparency, and attention to distributive effects. The best institutional response is not unrestricted judicial intervention or absolute deference, but structured dialogue capable of correcting exceptional failures without dismantling universal policy.