Structural Litigation and the Right to Health in Portugal: Challenges and Perspectives in the Judicialization of Public Policies

Abstract

This article analyzes the judicialization of the right to health in Portugal, with a special focus on structural litigation as an instrument for the realization of this fundamental right. Based on the constitutional recognition of the right to health protection in Article 64 of the Portuguese Constitution, the study highlights the essential role of the State in promoting universal and equitable access to healthcare through the National Health Service (SNS). In this context, structural litigation is presented as an innovative legal response to systemic failures that undermine the proper functioning of the SNS, allowing the Judiciary to intervene more broadly and effectively in the protection of collective rights. The analysis identifies the increasing involvement of Portuguese courts in public health matters, recognizing the positive impact of judicial decisions that compel the State to adopt structural measures. However, the article also underscores the challenges of such judicial intervention, namely the institutional limits of the Judiciary, budgetary constraints, and administrative resistance to the enforcement of structural judgments. The research further highlights the tension between the need to protect fundamental rights and the respect for the separation of powers, proposing as a solution the promotion of a more effective institutional dialogue among the Executive, Legislative, and Judicial branches. The study concludes that, although structural litigation represents a promising avenue to address persistent crises in the health sector, its effectiveness depends on strong interinstitutional cooperation, adequate public resources, and the strengthening of institutional capacities. Thus, it argues that the Judiciary, without exceeding its constitutional boundaries, can play a transformative role in promoting social justice and ensuring the right to health in Portugal. Finally, the article proposes the creation of practical mechanisms for the implementation of structural judicial decisions, contributing to the construction of a fairer, more effective, and sustainable healthcare system.