Brazil Supreme Court deadlocks over elderly insurance case

A long-running dispute over whether the Statute of the Elderly applies to health insurance plans signed before 2004 has stalled at Brazil’s Supreme Federal Court (STF) due to shifting judicial compositions and an open seat. On Thursday, the court once again failed to reach a final decision on the merits of ADC 90, the case testing whether age-based pricing bans in the statute extend to contracts predating its 2004 entry into force.

Parallel Case RE 630.852 Raises Conflict

The question is also pending in RE 630.852, a related case under the Tema 381 precedent, where the same legal conflict has produced divergent outcomes depending on which justices participated. In 2020, five ministers—Rosa Weber, Edson Fachin, Ricardo Lewandowski, Alexandre de Moraes, and Celso de Mello—ruled that the statute’s protections could apply to older contracts if the policyholder reached the protected age bracket after 2004. Marco Aurélio dissented. By the time voting concluded, seven justices had supported the broader interpretation, but the decision was never formally declared.

The court then paused to align the two cases, but the composition had already changed. Weber, Lewandowski, and Mello retired, leaving a different bench to revisit the issue in ADC 90. There, Dias Toffoli, André Mendonça, Cristiano Zanin, Nunes Marques, and Luiz Fux argued the statute should not retroactively bind pre-2004 contracts, while Flávio Dino, Moraes, Cármen Lúcia, and Fachin allowed limited exceptions. Gilmar Mendes took a middle ground.

Vacancy Threatens 5-5 Tie

The inconsistency troubled Toffoli, who noted the court’s open seat could further complicate the outcome. Luís Roberto Barroso had recused himself from both cases, but his personal restriction does not extend to his successor. If a new justice joins the court, their vote could tip the balance—potentially resulting in a 5-5 tie with the seat still vacant, leaving the matter unresolved.

Alexandre de Moraes echoed the concern, framing the dilemma as a structural risk: identical constitutional questions yield different results when judged by different tribunals. He cited the “revisão da vida toda” pension dispute as a precedent, where the STF initially allowed favorable recalculations of retirement benefits but later reversed course after a shift in judicial composition. In 2025, the court overturned its own earlier ruling, applying the stricter interpretation retroactively.

Mediation Push: NUSOL Proposal

The health insurance cases now face the same tension. The RE 630.852 majority was built on votes from justices no longer on the bench, while ADC 90 reflects a current division that may not align.

The RE 630.852 ruling had already established a precedent under the now-retired bench, where five justices, Rosa Weber, Edson Fachin, Ricardo Lewandowski, Alexandre de Moraes, and Celso de Mello, concluded that the Statute of the Elderly’s age-based pricing ban could apply to pre-2004 contracts if the policyholder entered the protected age bracket after the law’s entry into force. Marco Aurélio dissented, arguing that the statute’s protections did not extend to contracts predating its 2004 implementation. Despite the seven-vote majority, the decision was never formally declared, as the court opted to await ADC 90 for alignment.

In ADC 90, the current bench split differently. Flávio Dino, Alexandre de Moraes, Cármen Lúcia, and Fachin allowed limited exceptions, permitting the statute’s protections to apply under specific conditions, such as when the insured reached the protected age bracket post-2004. Gilmar Mendes proposed a middle ground, suggesting that the statute’s intent should guide interpretation without rigid retroactivity.

The divergence stems from the court’s shifting composition. Toffoli highlighted this inconsistency, noting that the two cases addressed the same constitutional question but yielded conflicting outcomes due to differing judicial lineups. The unresolved vacancy further complicates the matter: Luís Roberto Barroso’s recusal does not bind his successor, meaning a new justice could join the debate and alter the balance.

To address the impasse, Toffoli proposed sending ADC 90 to the Núcleo de Solução Consensual de Conflitos (NUSOL), the STF’s mediation unit, in hopes of a unified resolution. However, procedural hurdles remain. The court must first reconcile the two cases, one with a majority from a past bench, the other with a divided current one, before any consensus can emerge. The risk of a 5-5 tie with the seat vacant looms, leaving the dispute unresolved unless a new justice tips the scales.

Pension Precedent Signals Instability

The “revisão da vida toda” pension dispute serves as a cautionary example. Initially, in RE 1.276.977 (Tema 1.102), the STF allowed favorable recalculations of retirement benefits under a 2022 ruling. But after a shift in judicial composition, the court reversed course in ADIns 2.110 and 2.111 (2024), enforcing stricter transition rules. The earlier precedent was later canceled in 2025, demonstrating how changing benches can overturn prior interpretations.