ABSTRACT
Objective: the COVID-19 pandemic revealed serious structural failures in the Brazilian health system, aggravating an existing crisis and favoring the judicialization of health. Would the traditional judicial process be the most appropriate to deal with this new wave of judicialization of health? Based on this inquiry, this paper investigates how structural litigation, guided by an experimentalist perspective, can contribute to access to health in times of pandemic. Methodology: The deductive method is used, supported by bibliographic-documental research and qualitative analysis of ADPF nº 709, filed in 2020, which addresses the Union's omissions in the protection of indigenous peoples during the pandemic. Results: The structural litigation, guided by experimentalism, may allow dialogical judicial interventions, which do not usurp the typical competences of the Executive, but which lead to the creation of plans to face structural problems in public health, aggravated by the pandemic. Contributions: Among the various contributions brought by the present study is the analysis of ADPF No. 709, filed in 2020, which deals with the Union's omissions in the protection of indigenous peoples during the pandemic, which seeks to demonstrate the practical applicability of the structural process and investigates the possibility of edition of dialogical and cooperative judicial judgments that assist the majority bodies in the creation of plans to cope with social deficits left by the COVID-19 pandemic. © 2022, Centro Universitario Curitiba - UNICURITIBA. All rights reserved.