O direito à saúde e a emenda constitucional nº 95 diante da regra da proporcionalidade

Abstract

This dissertation approaches the rule of proportionality as an instrument to solve the specific conflict between Constitutional Amendment No. 95, which prevents the increase of expenditures, proposed by the Government to rebalance the public accounts and resume economic growth, and the constitutional right to health. Faced with the economic crisis, although the State is obliged to take some measures to overcome the problem, it is necessary to reflect whether such measures justify, for its execution, the production of some damage to fundamental rights, especially the right to health, due to its Importance in the constitutional context. For the management of the rule of proportionality, Aharon Barak's approach was chosen, needing a previous theoretical discussion of the theory of principles and the elements of proportionality, comparing his approach, especially to that of Robert Alexy, one of the foremost professors on the subject. To understand the background of the conflict, we discussed the meaning of the constitution and its objective to constitute a State of Social Welfare within a context of economic neoliberalism, symbolized by the Washington Consensus. When propperly applying the rule of proportionality, to solve the conflict, many economic elements were analyzed, based on research related to the theme, carried out by several authors both internationally and nationally. The conclusion drawn from the rule of proportionality, applied with the help of economic elements, was that constitutional amendment 95 is disproportionate, having, as a result of the study of tax multipliers, little possibility to fulfill the objectives assigned to it by the State, and under the social cost of producing great harm to the right to health. The conclusion also showed that there are other alternatives, such as the suspension and auditing of the Brazilian public debt and the regulation of the tax on large fortunes, which when compared with the constitutional amendment nº 95, have been shown to be more likely to achieve the intended state purposes to rebalance the public accounts and help the resumption of growth, and, at the same time, without damaging the constitutional right to health.