Litigating their way to better health
Court cases regarding the right to health are on the rise. In Colombia, where the phenomenon is perhaps most extreme, courts heard more than 140 000 health rights cases in one year (2008), and approximately 80 % of the claims are granted. Can the litigation of health rights bring more justice to health services?
-Litigation can change policy, force change in funding, and eliminate discriminatory provisions of laws and policies. There is no doubt that litigation in many cases helps individuals to get access to medicine and health care. However, it is more complicated to try to assess the pro-poor equity effects, says Alicia Ely Yamin, associated senior researcher at Chr. Michelsen Institute and co-editor of the book “Litigating Health Rights. Can Courts Bring More Justice to Health? ”.
An option for the middle class
For anyone to go to court, the case must be framed in terms of violation of a legal right. The right to health is recognized as an international human right. The right to health is also articulated in national legislation in many countries throughout the world, and in some countries the right to life has been interpreted broadly to include access to health services and care.
As barriers to access to justice parallel barriers to access to health, in some countries, it is primarily the middle class that is litigating health rights. However, in many cases they are forced to bring lawsuits for medications and treatments to which they are entitled under national health plans. Moreover, the “middle class” may include large sections of the population that are quite low-income.
For NGOs it is important to bring strategic litigation where possible, aimed at transforming health systems to be more pro-poor, says Yamin. This has occurred in South Africa, Argentina, India and elsewhere.
Siri Gloppen, senior researcher at Chr. Michelsen Institute, is co-editor of “Litigating Health Rights. Can Courts Bring More Justice to Health? ” . She argues that litigation can be a useful tool in putting questions concerning health on the agenda. Courts can bring up controversial questions that have been blocked from the public arena, like HIV-AIDS medication, medical services for prisoners, or abortion. In 2001 the South African Constitutional Court ordered a reluctant government to provide medication to HIV-positive mothers to prevent them from passing on the virus to their babies, and in 2009, after a case of health right litigation, a court ruling decriminalized abortion in Mexico City.
The gap between court rulings and real life
Although it can be hard to spot instant effects for the poor, judges have in many cases made pro-poor judgments. India has made massive efforts to provide school lunches, ever since the right to food was litigated in court. In Colombia, the Constitutional Court ordered the government to reform the health care system to provide the same services to those who cannot afford to pay health insurance as it does to those who contribute from their earnings.
-However, there is still a gap between real life and the implementation of court rulings. Litigation is a strategy, but is neither the starting point nor the end for social change. Health right litigation needs to be embedded in political strategies and social movements if it is to benefit the poor, says Yamin.
Litigating Health Rights. Can Courts bring More Justice to Health?
Edited by Alicia Ely Yamin and Siri Gloppen (2011)