Una teoría de la justicia sobre el derecho a la asistencia sanitariaValidez, eficacia, fundamento, concepto y justiciabilidad

Resumo

The purpose of this thesis is to carry out a critical analysis of the main theories of justice in health care to identify their structural elements and the consequences of their application in public policy and normative production. Starting from a study on the emergence, development, and expansion of the right to health, it establishes the characteristics behinds its conceptualization and that have guided the rationale for the duty to contribute to the financing of a system of assistance for the mitigation, treatment or cure of diseases or health problems, as well as for the inclusion of people with varying degrees of functional diversity in society. Similarly, it aims to identify the reasoning proposed by some schools of thought concerning the duty of restriction of States to exercise a redistributive function of resources or to become an engine of social justice, in accordance with some neoclassical liberal and libertarian doctrines. In this way, it pretends and evaluates arguments for and against the recognition of a right to health care with universal coverage, whose purpose is to provide the conditions of health care and inclusion necessary for the development of basic human capabilities. On this basis, it formulates a theory of justice that establishes that health care is not a public service, but a right with specific obligations on the part of the State, which can be enforceable before national and supranational courts based on the norms of public international law. In addition, it sets the need to lay down differential budgetary approaches and the formulation of principles that serve as inputs for the normative production, for the resolution of controversies, antinomies, normative gaps, and collisions of principles, related to the right to health care. Finally, it establishes the need to create substantive and procedural agreements, which serve as a basis for the restructuring of existing normative hierarchies based on the idea of selfishness, in order to make way for an inclusive society, under the aegis of a practical reason oriented to the recognition of diversity as a human condition and adapted to the needs of a global society that must understand that life, death, illness and functional diversity are intrinsic to the existence of every community and that empathy, solidarity and respect constitute the basis for an authentically free society.