Background: In Brazil and other countries, the judiciary branch plays an active role in health policies, due to the phenomenon called judicial activism or judicialization of health.

Objectives: To establish useful parameters to support the judicial power in cases involving health policies and drugs.

Discussion: It is known that scientific evidence is associated with a lower rate of errors. Though, it is expected that legal practitioners recognize evidence as a basis for decision-making. However, one of the greatest challenges on implementing this premise is the broad discretion held by the judges, as there is no hierarchy of legal evidence (Principle of free persuasion of the judge).

Conclusions: The Brazilian Cochrane Center, from the experience gained in tackling the issue, believes it is possible to establish three precepts, which would ensure that judicialization of health policies could be conducted safely. First of all, when the object of the lawsuit reveals a high level of scientific evidence, the judicial intervention will be legitimate. The inertia of the government, in such situations, can be characterized as faut du service, legitimizing judicial mediation. In the other hand, it there is no available evidence, the judiciary branch may, as a rule, dismiss the case. However, in such situations, the judge can conduct an extensive analysis of the peculiarities of the case, trough the performance of forensic expertise. Finally, if there is scientific evidence that points against the intervention, the judicialization of health policies may cause damage to the collective and the individual’s health. By ignoring evidence, the Judiciary Branch will be denying the constitutional right to health; though, for reasons unrelated to science, believes to be ensuring it.