Direito à saúde e organizações sociais: uma análise da decisão do STF na ADIN n° 1923/98 sob o prima das teorias do sentimento constitucional e da constituição dirigente

Abstract

This thesis, which is based on the theory behind both constitutional feeling and ruling constitution, aims to analyse the brazilian Supreme Court‟s - STF decision regarding ADIn n° 1.923/98, which refers to both the constitutionality of the law 9.637/98 that regulates the Social Organizations – OS, and to the article 24, item XXIV, from the law 8.666/93, which dispenses the obligation of bidding procedures when contracting the OS. Taking the sanitary reform movement as a start, this is an important item on behalf of the declaration of constitutional right to health. This document analyses whether the STF decision is or not according to the theory behind both constitutional feeling and ruling Constitution and also the fight for its effectuation. From both a historical dialectical perspective and the theories assumptions, it was possible to comprehend the transformations occurred on the Brazilian Public Health System throughout the last decades, which also confirms the hypotheses initially formulated that the STF decision is not according to the constitutional guidelines of the right to health and the necessary conditions to its effectuation. On the contrary, the decision only meets the objectives of the market, making it easy to privatize the health in process, through the transfer of the management of the public health services to the OS. The investigation points out the fact that the decision of the STF does not take into consideration the constitutional feelings expressed in the option for a public health system in which the private sector would remain in a merely residual condition. By releasing the state from the bidding procedure on the OS hiring process, and by facilitating the process of transferring the public services into the private, here at represented by the OSS, the decision goes towards the contrary of the constitutional dirigisme, once, it indirectly, allows the state to breaches its obligation to render the health services directly to the citizens. Finally, the analyses effectuated allows us to conclude that, with the STF decision, the oversight mechanisms performed by the Public Ministry and the Audit Offices, as well as the organizations and institutions of Social Control should be strengthened, with the aim to ensure that Brazil will leave being a country simply with a Constitution, to, instead, be in a Constitution.