Experts analyze whether different treatment of different believers violates the principle of equality
THE STF (Federal Supreme Court) analyzes this Wednesday (September 18, 2024) whether religious beliefs can allow a patient to request treatment that meets their faith paid for by the State.
In this specific case, the Court is analyzing two appeals that deal with cases of Jehovah’s Witnesses who requested treatment to perform surgery without blood transfusions. In the religion, this practice is prohibited.
In the extraordinary appeal 979742, reported by Minister Roberto Barroso, the Union appeals against a ruling by the Appeals Panel of the Federal Special Court of Amazonas and Roraima that determined payment for the surgical procedure, unavailable in the public network, with the State of Amazonas and the municipality of Manaus.
The defense claims, however, that the treatment is not differentiated and is carried out at the Hospital do Pari, in São Paulo. He requested assistance to pay for his and his companion’s tickets from Manaus to São Paulo, as well as accommodation and cost assistance.
The extraordinary appeal 1212272reported by Gilmar Mendes, is from the patient who is a Jehovah’s Witness against a ruling by the Appeals Panel of the Judicial Section of Alagoas that upheld a decision that prevented him from undergoing a surgical procedure without a blood transfusion. The patient refused to sign a commitment form to allow the transfusion and, therefore, had the surgery denied by the hospital.
In the decision that rejected the appeal, Gilmar spoke of a violation of the principle of equality in giving different treatment based on religious conviction. Later, he acknowledged the general repercussion of the case because it deals with constitutional principles.
Barroso, in the case in which he is the rapporteur, said that there is no violation of equality, since the Union does not identify a list of patients with the same medical condition, which would justify a violation of the order of preference.
VIOLATION OF EQUALITY
To the Poder360experts endorse Barroso’s argument. For them, the public health system, being egalitarian and universal, must provide treatment that also meets the patient’s religious conviction, a right guaranteed by the Constitution.
According to Marcelo Figueiredo, professor of Constitutional Law at PUC-SP (Pontifical Catholic University of São Paulo), the principle would be violated if the cost of treatment were paid only for Jehovah’s Witnesses.
For Fernanda Zucare, a consumer law specialist at Zucare Advogados Associados, the treatments “differentiated” required are not costly to the Union and are provided for in the SUS (Unified Health System). In both appeals, the defenses claim that they accept “other therapies and techniques provided for in the Unified Health System”.
In RE 979742, the patient claimed that the Hospital do Pari, in São Paulo, would specialize in low and high complexity orthopedic surgeries for patients who do not accept transfusion. He asked for help with travel and accommodation costs, as he was from Manaus (AM).
“It is not an experimental treatment, it is not a million-dollar treatment, it is not an expensive treatment, it is a treatment that will give a patient a right already provided for in the Constitution”said Zucare.
In both appeals, the PGR argued in favor of the right to seek treatment that meets religious convictions. In the first case, it said that the Union should bear the costs of carrying out the treatment, as long as it is available in the SUS. In the second case, it defended the patient’s refusal, as long as there was no risk to the health of the community, and also the performance of an alternative procedure if there was technical-scientific capacity.
IMBROGLIOS
The general repercussions linked to the trial are on the topics 1069 and 952. The first one talks about the right of Jehovah’s Witnesses to request medical treatment without blood transfusion. The second one discusses “the possibility that the right to religious freedom justifies the cost of medical treatment unavailable in the public health system”.
According to experts, ministers must be careful when dealing with the 2nd definition. They claim that it can cause a “legal uncertainty” if the defined thesis encompasses treatments not available in the public health system.
According to Figueiredo, the SUS must prove that it can provide differentiated treatment. According to Zucare, even if the SUS does not provide the treatment, it can and should be incorporated into the system if it is recognized by medicine and regulatory agencies, such as Anvisa, to respect religious freedom.
Zucare also highlights that, in the 2 appeals under judgment, the defenses argue that the treatments requested are provided for in the SUS, therefore, the binding theme would be going beyond what is required in the processes.
Experts say the issue could set a precedent for people to try to demand different treatment, regardless of their religious beliefs.
This report was written by journalism intern Bruna Aragão under the supervision of editor Victor Schneider.
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