Judicialização, equidade e terapias de alto custo

um estudo à luz dos temas 6, 1234 e da ADI 7265 do STF

Abstract

This article examines inequities in access to healthcare between Brazil’s Unified Health Sys-tem (SUS) and the supplementary health sector, in light of the Supreme Federal Court (STF) rulings in Themes 6 and 1234 and, more recently, the judgment in ADI 7265. It argues that, although grounded in scientific rationality and budgetary constraints, these decisions have imposed nearly insurmountable barriers on patients by requiring top-tier scientific eviden-ce for the granting of non-incorporated medicines or treatments, thereby configuring a true “devil’s proof” within civil procedure. Initially, such rigor disproportionately affected SUS users, while supplementary health care, after Law No. 14.454/2022, preserved greater judi-cial permeability with more flexible requirements. However, ADI 7265 reshaped this lands-cape, bringing supplementary health closer to the same restrictive criteria already applied to SUS, demanding robust proof of efficacy, safety, and regulatory approval. This alignment reduced normative asymmetry between the two systems but at the cost of reinforcing access barriers for all patients, intensifying tensions between health litigation and the constitutional principles of universality, comprehensiveness, and equity.