Background: It is known that the great majority of nations consider the right to health as a fundamental right. Thus, it proposes a doubled guarantee: first of all, disease prevention, encouraging prophylactic measures; second, effective and safe treatment to diseases, so it may lead to cure or, at least, ensuring the dignity of patients. In fact, such broader health protection has been expanding all over the globe. The United States, recently, approved the Affordable Care Act, which promoted changes in the public and supplemental health of the country, expanding coverage and assistance. In fact, resources are scarce and social demands are immense. The debate is even more imperative when considered countries like Brazil, with strong judicial activism and health policy judicialization. It means that, in many cases, the judicial branch may have a decisive influence on health policies and, worse, disregarding any evidence or scientific basis. Indeed, few individuals will access high-cost treatments, which, in most cases, do not reach the expected outcome.

Objectives: It is relevant to encourage changes in law’s decision-making model, specially considering the great and fast evolution of science. It is a matter of questioning whether the law’s conventional methods are adequate in an era of increasing scientific complexity.

Methods: The issue has been evaluated under a PhD program at Brazilian Cochrane Center and Federal University of São Paulo.

Results: Judicial decisions may violate the collective right to health, due to excessive and scientifically ungrounded spending. Also, those decisions may undermine the individual’s right to health, as plaintiffs may get treatments with lack of scientific guarantees about its effectiveness and, above all, safety.

Conclusions: It seems clear that the right to health may be qualified as a right to evidence based health. It is an essential first step towards an universal and sustainable health system.