44 The Right to Health: The Potential and Limits of Catalysing Systemic Change through the Courts

The history of how health-related rights have evolved in Latin America is inextricably linked to contestation over boundaries between private morality and public policy, between individual and social responsibility for health, and between the role of the state and markets. In a region of profound social inequalities¹ that are deeply reflected in social determinants of health, as well as health outcomes, health systems have been sites of social contestation, from the incorporation of health and social protections for workers in the wake of enormous immigration to movements for social medicine to market-based liberalization and reforms. Moreover, since colonial times, when health was largely conceived of as charity organized by religious institutions, there has remained a deeply embedded discourse of health conditions as divine punishment for ‘sin’, which is most acutely evidenced in relation to sexual and reproductive health.² Indeed, the right to health is perhaps the most radical of social rights because it challenges what is taken for granted as ‘natural’.³

The contours of the right to health are also especially susceptible to the accelerating pace of pharmaceutical and technological innovation and the changing epidemiological profiles of populations. Both trends not only drive demand in health care markets but also create ever more stress on financing those systems. In the second half of the twentieth century, not only did much of the region—particularly urban populations—undergo a significant epidemiological transition from infectious diseases to chronic conditions, technological advancements also drove the organization of health systems to evolve significantly. The archetypical physician with the little black bag was replaced by a complex apparatus that depended upon specialized equipment and specialty practices, which in turn called for entirely different financing, as well as service delivery, arrangements.⁴

Much of the region has also faced the effects of waves of structural adjustment policies, and austerity, that have deeply affected the capacity of governments to respond to health claims. In the 1980s and 1990s debt was assumed and a menu of neoliberal policies were adopted, at the same time as new health reforms often created fragmented regimes based largely on divisions between formal and informal employment sectors.⁵ Both the architectures of most health systems and other social determinants of health were evolving in ways that restricted the realization of health rights in the region.

At the same time, in the wake of military dictatorships or particular political inflection points (e.g. Colombia), a wave of new constitutions and constitutional amendments came into being. These new constitutions enshrined principles of social constitutionalism that established social or welfare purposes as integral to the design of the state, sometimes included enumeration of specific social rights, and in many cases incorporated international human rights norms through ‘constitutional blocs’ (bloques de constitucionalidad). In conjunction with chronic democratic deficits and a lack of capacity on the part of many governments to either respond to public clamour for health demands or to effectively regulate health systems, easy individual access to courts through such protection writs has created an acute demand for medical treatments through judicial action.⁶ Thus, just as health and other social rights were being formulated in these constitutions, state capacity to deliver on legal promises was constrained due to the increasing neoliberalism in precisely those areas of law structuring economic and social life, including health systems and the social determinants of health.⁷

One way of understanding judicialization of health rights in the region is precisely the gap between supply and demand, which was accentuated in many instances by health reforms that increased coverage of social insurance.⁷ However, in this chapter I argue that this analysis understates a principal conceptual implication of construing health as a right, which is neither to deny the scarcity of resources nor the need for rationing. It is rather to understand the health system as a core social institution, and the definition of the contours of an enforceable legal entitlement as requiring a legitimate democratic process just as much as a credible application of scientific-technical evidence.⁸ Understood in this light, health systems embed normative decisions, from macro-levels in terms of solidarity of financing to the most micro-levels regarding information provided by providers to patients.⁹ Further, in this view, courts have a role to play in ensuring that the decisions taken in health systems are justified and in keeping with fundamental constitutional commitments, ranging from safeguarding the dignity of women who seek abortions after sexual assault to the extent of governmental obligations to provide health entitlements that reflect equal concern and respect for all members of society.¹⁰

Yet all too often in the region, judicial remedies have been appended onto broken systems and, while empirical evidence regarding the equity effects of the flood of legal enforcement of individual entitlements remains ambiguous, there are well-founded concerns regarding the potential for judicialization to skew attention to curative care from public health measures and to reduce aspirations for health justice to a feeble ‘sufficientarianism’.¹¹ In Part 44.2 of this chapter, I outline the ‘concepts and content’ of constitutional provisions regarding health. in five countries in the region—Argentina, Brazil, Colombia, Costa Rica, and Mexico—pointing to some shared contextual factors and concepts, as well as distinctive aspects that have shaped judicial interpretation.¹² In Part 44.3, I then turn to experiences with judicialization of health rights in the region. After briefly setting out some context for the intense exploitation of individual judicial actions, I explore the potential opportunities and challenges of dialogical remedies as a response to massive judicialization, based upon a case study of the most sweeping structural decision to date in this area, T-760/08, in which the Colombian Constitutional Court called for reform of the health system based upon the right to health.¹³ I conclude that while dialogical remedies can potentially foster dialogue with the executive as well as shifts in public discourse regarding health as a right, there are significant limitations to the extent to which judiciaries can destabilize the steep asymmetries of information and power within health sectors, and catalyse greater democratic deliberation regarding the structural constraints on the effective enjoyment of health rights.

Although the actual constitutional provisions, as well as the nature of the health system, differ substantially across countries in the region, health rights are defined in terms of more than medical care and is connected to larger economic and social issues and policies in most of the constitutions of the region. Moreover, across these countries, structural innovations in the wave of new constitutions and reforms have deeply impacted how health rights have come to be interpreted and enforced by courts. These have included two or more of the following aspects: (a) the establishment of a ‘constitutional jurisdiction’, sometimes with a high court or specialized chamber of a high court overseeing it; (b) the introduction or modification of protection writs (e.g. amparos, tutelas) as a mechanism to protect and promote the rights endowed in the constitution; (c) the incorporation of international human rights norms and standards through a constitutional bloc; (d) the expansion of abstract review of legislation; and (e) the reduction or virtual abolition of standing requirements.¹⁴ The development of jurisprudence on the right to health has been further enabled by a reduction in formalism on the bench, reflected both in substantive erosions of distinctions between directive principles and fundamental rights as well as in practices regarding, e.g. amicus curiae.

Argentina has a federal system of government, and health is regulated at both the national and provincial levels. The military dictatorship in Argentina (1976–1983) incurred $36 billion in foreign debt,¹⁵ and subsequent democratic governments implemented structural adjustment programmes to pay off national debt, until the government defaulted in 2001.¹⁶ Both structural adjustment and the default, and subsequent Corralito, had substantial impacts on the health system.¹⁷ According to UN Independent Expert Cephas Lumina, the crisis:

severely affected the public health system, with hospitals suffering a serious shortage of basic supplies and prices of medicines soaring. In addition, the drastic drop in employment left roughly 60 per cent of the population outside the social health insurance system.¹⁸

The current health system is composed of public, social (a contributory regime for those in formal employment based upon a social insurance package) and private health sectors, and in practice is fragmented to the point of what has been called ‘atomization’, which produces inequities across plans and providers.¹⁹

Social rights were initially embedded in the 1949 Constitution under Juan Domingo Perón, reflecting the strong influence of the labour movement under ‘Peronism’ at the time. In the 1957 text, Article 14 bis incorporated social constitutionalism, which established a ‘Social Security’ system that included both traditional social security and a broader concept of social protection.²⁰ However, it was through constitutional amendments introduced in 1994 that announced equality and social justice as organizing principles for the state, and gave human rights treaties constitutional status through Article 75.22.²¹However, as Laura Pautassi and Gustavo Gamallo note that, just as social rights were being incorporated into the amended Argentine Constitution of 1994, the Keynesian state apparatus was being dismantled.

The current constitutional protection of the right to health extends well beyond medical care. For example, the Constitution protects the collective right to ‘a healthy and balanced environment for human development’ (Article 41) and consumers’ rights ‘to the protection of their health, safety, and economic interests’ (Article 43). Further, Article 75 mandates the Legislature to provide certain health and other social protections on the basis of social equality (Article 75), understood as including both formal and substantive dimensions.

The Argentine Supreme Court has recognized the constitutional status of the right to health as a result of the constitutional bloc.²² The Court has cited international norms in support of protecting against unilateral termination of health services by different health insurers, including private ones,²³ in enforcing obligations to guarantee access to treatment²⁴ and holding that the federal government is a subsidiary guarantor in various cases against provincial public contributory insurers.²⁵ The Court has also addressed the protection of the right to health in relation to vulnerable groups, such as children,²⁶ persons with disabilities,²⁷ people with severe diseases,²⁸ and socially marginalized communities.²⁹

Paola Bergallo argues that courts’ increased involvement in health in particular can be attributed not just to legal developments, but also to the failures of political organs of government to respond to regulatory and oversight failure in the fragmented health sector. Bergallo explains the ‘routinization’ of right-to-health claims filed by individuals as the result of the accumulation of amparo cases clustering around demands for certain treatments or services.³⁰ As a result of regulatory failure, these clusters have emerged around disputes over coverage for a particular illness or a particular group of patients, as well as around particular insurer defendants.³¹

At the same time, other authors point to significant structural precedents going beyond medical treatment and to precedents that have utilized dialogical remedies. In the early case of Viceconte,³² public interest litigation sought to require the state to provide a vaccine against the Argentine haemorrhagic fever that threatened the lives of 3.5 million people, most of whom did not have access to preventive medical services.³³ The Federal Administrative Court of Appeals ultimately ordered the government to designate funds for completing the vaccination campaign and ensuring the production of the vaccine, put a follow-up framework in place to oversee compliance with its ruling, and established a deadline for the state to meet the requirements.³⁴

In a case involving the clean-up of the highly polluted Matanza-Riachuelo River Basin,³⁵ the Argentine Supreme Court issued a dialogical decision that established benchmarks and a timeline for clean-up of the river basin, but left significant discretion to the various agencies involved. The Court also created a compliance authority to manage all the activities triggered by a decision, giving both civil society organizations and ordinary residents of the affected area a voice and a place to be heard.³⁶  Nevertheless, after ten years, implementation has been less than satisfactory.³⁷ Indeed, the Court has called attention to a number of deficiencies that continue to hinder implementation efforts during a recent public hearing, including the failure of multijurisdictional agency, ACUMAR (Authority of the Matanza-Riachuelo River Basin) to integrate human rights and environmental protection concerns sufficiently in its work.³⁸

Brazil is a Federal Republic that stands out in the region both for the scope and specificity of the right to health in its 1988 post-dictatorship Constitution, as well as for the Unified Health System (SUS) created under that Constitution. The country’s deep health inequities had increased under the dictatorship. For example, while children in the lowest wealth quintile were 4.9 times more likely to be stunted than those from families in the highest wealth quintile in 1974–1975, this ratio had increased to 7.7 by the late 1980s.³⁹ The creation of the SUS, including innovative mechanisms for citizen participation,⁴⁰ was an integral part of the struggle for democratization in Brazil.⁴¹ In contrast to Argentina, however, despite the incorporation of international human rights norms into national law through the Constitution, relevant treaties have not been cited to extend the contours of the right to health.

Health was recognized as a fundamental right in the Constitution of 1988, under Title II. Article 6 states: ‘education, health, work, housing, leisure, security, social security, protection of motherhood and childhood, and assistance to the destitute, are social rights under this Constitution.’ The right to health must be interpreted in light of Articles 196 to 200, which, inter alia, state clearly that health is to be guaranteed ‘by means of social and economic policies aimed at reducing the risk of illness and other hazards and at the universal and equal access to actions and services for its promotion, protection and recovery’.⁴² Thus, the right to health is defined broadly, beyond medical care to include actions and policies involving ‘social and economic policies’ in general (Article 196), as well as public health measures such as ‘preventative activities’ (Article 198), ‘sanitary and epidemiological actions’, ‘health of workers’, and ‘preservation of the environment’ (Article 200).

A small fraction of the litigation relating to health in Brazil does relate to pre-conditions of health, such as sanitation.⁴³ While sanitation is a compulsory public service in Brazil, the Constitution does not establish a specific right to such services. Instead, Brazil’s courts have referred to a right to sanitation services as a social and economic right, tying it to the Brazilian Constitution’s health rights (Articles 6 and 196), environmental rights (Article 225) and, in some cases, housing rights (Article 6).⁴⁴ However, while there is evidence that the courts have favoured public health policies granting sanitation services and that their decisions have fostered greater political priority on sanitation, these decisions addressed only a small part of the country’s need for sanitation services.⁴⁵

Health rights litigation in Brazil, as elsewhere in the region, has concentrated overwhelmingly on individual access to medical care and, in particular, medications. Indeed, the great preponderance of the tens of thousands of health rights claims have involved the use of provisional protection measures to provide access to individual entitlements.⁴⁶ And nowhere are the equity impacts of judicial enforcement of health rights more contested than in Brazil. Octavio Motta Ferraz has written that judicialization has favoured the middle class and expensive medications, and has undermined notions of formal equality in the Brazilian constitution by fostering queue jumping.⁴⁷ Joseph Amon and Joao Biehl have contested critiques of judicialization as largely ‘myths’ and have argued that findings of benefits going to the middle class should simply spur greater efforts at equal access to justice rather than restrictions on judicial enforcement.⁴⁸ Mariana Mota Prado notes that the debates over equitable impact of the granting of entitlements obscures another important aspect of judicial enforcement, which is greater accountability and oversight in the complex Brazilian health system.⁴⁹ Although Brazil has a unified health system, the differentiated responsibilities of the federal, state, and municipal governments, as well as increasing privatization and failure to establish parameters for convênios with the private sector undermine both equity and accountability.⁵⁰

The politicized nature of judicialization of health rights has led the judiciary and legislature to take certain recent measures. In 2011, Federal Act 12401 was passed calling for treatment to be provided according to health system protocols and establishing a new National Council for the Incorporation of Technologies (CONITEC).

In 2014, the Superior Court of Justice, had denied an ordinary appeal based on the fact that ‘registration with ANVISA is a necessary condition to benefit from the product, being the first requirement for the SUS to consider its incorporation’ and therefore, ‘in general, the treatment provided by the SUS should be privileged rather than a different option chosen by the patient, whenever the ineffectiveness or impropriety of the existing health policy is not proven’.⁵¹As of this writing, the Supreme Federal Tribunal had been seeking to unify two judgments, one involving a treatment that has not yet been registered by the Brazilian Sanitary Authority (ANVISA) and one involving a high cost treatment not yet incorporated by the Public Health System.⁵² The judgment, which was temporarily suspended by a justice who later died in a plane crash, would unify standards for granting health entitlements that are not approved by the relevant executive branch authorities. Nevertheless, on 26 April 2017, the Superior Court of Justice (below the Supreme Federal Tribunal) ordered the suspension of proceedings in cases where the medicine was not incorporated in the SUS.⁵³

Colombia’s Constitution, adopted in 1991, enshrines principles of social constitutionalism, including a ‘social state of law’.⁵⁴ However, Article 49 of the Constitution defined health care, as well as social security, not as a right but as a public service, to be regulated, controlled and overseen by the state, but open to the participation of private capital.⁵⁵ Since the adoption of the Constitution, Colombia’s newly-created Constitutional Court has actively shaped enforcement of the right to health and health policy.⁵⁶

In 1993, the enactment of Law No. 100 initiated a major reform of Colombia’s health system, introducing a two-tiered system of benefits, based upon obligatory social insurance scheme tied to managed care: a contributory regime for those in the formal sector (POS-C) and a subsidized regime (POS-S), which contained approximately half the benefits.⁵⁷ Law No. 100 greatly increased formal coverage.⁵⁸ However, regulatory failure and fragmentation between its main oversight bodies plagued Colombia’s health system, making it difficult for the state to oversee the wide array of private and public actors involved in operationalizing the complex new system.⁵⁹

The evolution of judicial interpretation and enforcement of the right to health in Colombia can be divided into four periods: (1) a first phase characterized by generous court judgments related to the right to health; (2) a second phase during which the use of tutelas exploded; (3) the structural approach to the right to health in Judgment T-760/2008;⁶⁰ and (4) subsequent developments, including the enactment of a new Statutory Framework Law on Health based on the state’s obligations to respect, protect and fulfil the right to health.

The Constitutional Court’s early rulings relied upon a doctrine of ‘fundamental rights by virtue of connection’ (doctrina de conexidad) to hold that despite being a directive principle, the right to health could be claimed before courts when the lack of a good or service endangered the life of the claimant or the possibility to lead a dignified life, despite being a directive principle. The Court also held the right to health enforceable in cases involving a person or group of people in especially vulnerable circumstances or a claim for health care defined in the POS.⁶¹ It is important to note that the Court issued opinions that went beyond individual entitlements, considering proposed budget cuts to the subsidized regime, eligibility requirements for establishing indigence, definitions of comprehensive care and protections from interruption of coverage.⁶²

However, by 2008, courts throughout the country had become an essential ‘escape valve’ for individual Colombians who were denied access to medicines, surgeries, and treatments by a health system incapable of regulating itself.⁶³ The Human Rights Ombuds Office calculated that between 1999 and 2008 individuals presented 674,612 tutelas relating to health rights.⁶⁴ Both the Human Rights Ombuds Office and the non-governmental organization, DeJusticia, called for the Court to step in and declare an ‘unconstitutional state of affairs’.⁶⁵

In 2008, a specialized review chamber of the Constitutional Court issued Judgment T-760/08, which resolved twenty-two individual tutelas that represented systematic failures, and called for a structural reforms in the health system. The orders, which largely reiterated and synthesized prior jurisprudence and were based upon existing legislative frameworks, included: updating the bundles of health benefits and achieving universal coverage, progressively unifying the subsidized and contributory insurance regimes, improving the health system’s reimbursement procedures. The Court also called for greater oversight of different insurance companies (EPS) and administrative mechanisms aimed at resolving disputes.⁶⁶

The decision adopted what Roberto Gargarella describes as a ‘dialogical understanding’ of the system of checks and balances.⁶⁷ While the Court set broad goals and implementation pathways, set deadlines and included the need for progress reports, it left substantive decisions and detailed outcomes to governmental agencies.⁶⁸ Based on the example of a previous case relating to internally Displaced Persons (T-025/04), the Court established a follow-up unit to gather information, monitor compliance with the decision’s orders, and organize public hearings for issues relating to the orders.⁶⁹ In 2015, in the wake of T-760/08, Colombia’s Congress passed the Statutory Framework Law (Law No. 1751), which places the right to health at the centre of the health system.⁷⁰ Nevertheless, both access to care and the social determinnats of health in Colombia remain deeply unequal and therefore it is not surprising that individual health rights litigation in Colombia remains intense.⁷¹

Compared with other countries in the region, Costa Rica’s health statistics reflect fewer disparities. Yet, by comparison with international standards, the country still has a high degree of income inequality (GINI 50.69 in 2015),⁷² which translates into differential health outcomes and health gaps. Major challenges are faced in terms of skilled health professional’s density and efforts should be made to increase the expenditure on health research and development, which is one of the lowest in the world.⁷³ Costa Rica’s health system is composed by a public and a private sector. The public sector is mainly based upon a social insurance scheme provided through the Caja Costarricense de Seguro Social (CCSS), an autonomous institution in charge of financing, purchasing and delivering health services. For its part, the private sector includes ambulatory and hospital care services, which are financed mostly out-of- pocket or with insurance premiums.⁷⁴

The Constitution, which dates from 1949, contains an extensive list of civil and political rights, but not social rights.⁷⁵ The right to health is a derived right, constructed from the right to life (Article 21) and the right to social security (Article 73).⁷⁶ Judicial enforcement of health rights was enabled by a 1989 constitutional amendment that added a seven-member constitutional chamber to the existing three chambers of the Costa Rican Supreme Court (Sala IV) and amended Article 48 to include a constitutional bloc, giving international human rights treaties the same force as constitutional law, along with Articles 10, 105, and 128.⁷⁷ Bruce Wilson argues that unlike the prior Supreme Court, the Sala IV used its centralized judicial review powers to abandon the legal formalism of the earlier Court, and to assertively enforce individual rights, including health-related rights, through its interpretation of the right to life.⁷⁸ The enabling law that accompanied the creation of the Sala IV (Ley de la Jurisdicción Constitucional), not only mandated the Court to guarantee the supremacy of the norms and constitutional principles, international law, and communal law in force, as well as their uniform interpretation and application, it also removed virtually all barriers to accessing the Court.⁷⁹

The role of the Sala IV in expanding and enhancing the understanding of health rights has been significant. Through its rulings it has imposed to and delineated the Caja’s way towards the full enjoyment of health rights. For instance, the Sala IV has regularly ruled in favour of transplant patients, antiretroviral coverage for HIV/AIDS patients and keeping clinics open that the Caja wanted to close. Indeed, the ability of marginalized individuals and organizationally weak groups in Costa Rica, including LGBT groups, to seek protection and enforcement of their constitutional rights made this judicial avenue particularly attractive. As Wilson writes, ‘once the Court had constructed a fundamental right to health—and once it became clear that the Caja Costarricense routinely complied with the Court’s rulings—the legal opportunity structure became increasingly obvious. While the average success rate for amparo cases is approximately 25%, the success rate in recent years for health rights amparo claims against the Caja is over 60%’.⁸⁰

From the time of the Mexican Revolution, health has been addressed in relation to agrarian reform, the establishment of social security and labour protections, and ambiguous efforts concerning the status of indigenous groups. The health system was historically based upon segmented schemes for those employed in formal and informal sectors, with a few special regimes for e.g. the military. In 2003, the programme Seguro Popular at least formally created universal social protection and health coverage. The architect of the Seguro Popular and Minister of Health at the time, Julio Frenk, stated:

The shift in power [in the election of President Vicente Fox from the opposition, PAN] that took place in 2000 was an indication that Mexico had made major progress in the exercise of civil and political rights. The following step was to reduce inequalities by creating the conditions for the universal and effective exercise of social rights, including the right to health care.⁸¹

Nonetheless, inequalities and segmentation persist in Mexico’s health system and reflect those of the overall society.⁸²

The Mexican Constitution of 1917 is often considered as a font of social constitutionalism in the region, as well as the inspiration for many of the economic and social rights provisions in the Universal Declaration of Human Rights.⁸³ It was the first constitution in the world to include justiciable social rights, including health and a healthy environment (Article 4).⁸⁴

The Constitution established that ‘Every person has the right to health protection. The law shall determine the bases and terms to access health services and shall establish the competence of the Federation and the Local Governments in regard to sanitation.’⁸⁵ It also explicitly protects the right to health of children and indigenous people. In the 1980s, through legislation creating the social security institute, Article 4 came to be understood as an individual right.

Articles 103 and 107 of the Constitution establish writs of amparo as a means of seeking protection of constitutional rights.⁸⁶  Amparo extends, but is not limited, to the first twenty-nine Articles of the Mexican Constitution, which includes the right to health. It also extends to human rights enshrined in international treaties, through a constitutional bloc incorporated via the 2011 amendment to the Constitution, although Article 1 stipulates that these treaties are incorporated to the extent they do not contradict the Mexican constitution.⁸⁷ The 2011 amendment also expanded standing to bring an amparo to any party with a legitimate interest (interés legítimo v interés jurídico), whether individual or collective.⁸⁸

These recent structural reforms in the Constitution, following a prior 1994 reform that was coupled with a significant reform of the judiciary in 1994, were instrumental in enabling what Justice Gutierrez Ortiz Mena has described as ‘a new attitude’ on the Mexican Supreme Court (and in turn other courts) which construed the Constitution as enforceable law, as opposed to a political text. The Radilla Pacheco case, an enforced disappearance case in which the Inter-American Court of Human Rights declared the responsibility of the national government of México for sub-national failures, also came to be an inflection point in regard to the incorporation of federal constitutional principles to states and the supremacy of national laws.⁸⁹

In recent years, the Court has decided cases relating to regulation of products affecting health,⁹⁰ decriminalization of abortion,⁹¹ and access to entitlements. For example, in 2014, the Court considered two important cases. In the Pabellón 13 case, the Court granted an amparo in favour of three HIV/AIDS patients and concluded that the failure to execute the project for the construction of a specialized ward for HIV/AIDS was a violation of the right to health.⁹² Pabellón 13 is has potentially important implications because it establishes an affirmative action on the government’s part to adopt measures based on epidemiological evidence, which could be deployed to create such obligations faced with infectious disease outbreaks, as well as with respect to other populations, such as prisoners. Second, the Court considered a lawsuit brought by seventeen patients that would have required the Mexican social security system, IMSS, to cover Soliris for a condition that some 250 patients have, at a cost of nearly $140 million every year.⁹³ The Court did not rule that that the health system must pay for Soliris, but called for a review of the drug by a commission that is charged with including or excluding drugs from the basic catalogue of drugs.⁹⁴ To date, unlike Colombia for example, the Mexican Supreme Court has refrained from a higher standard of scrutiny that rational basis for the reasoning underpinning legislation and Executive branch regulations in relation to health. In a 2015 lecture at Harvard, Justice Gutierrez Ortiz Mena argued that as a counter-majoritarian institution, the Court may ‘jump-start’ the political process, but it must not substitute for it.⁹⁵

Since the introduction of these new Constitutions and amendments, the region has seen an unparalleled explosion of health rights litigation. The volume of litigation has been greatest in Colombia, with 1,323.292 tutelas related to health filed between 1999 and 2014, according to the Human Rights Ombuds office.⁹⁶ Notably, the number of tutelas filed each year increased from approximately 20,000 in 1999 to over 118,000 in 2014.⁹⁷ In Brazil, it is difficult to calculate the total number of cases. However, the number of federal lawsuits claiming some kind of health benefit has increased dramatically in recent years, going from 5,323 between 2003 and 2009 to 47,551 between 2009 and 2012, to an estimated minimum of 200,000 by 2018.⁹⁸ In Costa Rica, approximately 19,000 health-related cases were filed before the Sala IV between 1989 and 2009. While few health cases were filed initially during that timeframe, health-related cases rose at a much faster rate than the Court’s total caseload after 1999.⁹⁹ In Argentina, lack of systematic record keeping makes it difficult to continuously tally cases. However, a study done by Bergallo found 6,528 right to health claims filed between 1998 and 2007, with the number per year filed tripling during that time (449 cases in 1998; 1,159 cases in 2007).¹⁰⁰

A number of factors underlie the volume of health rights litigation, which stem from the health system as well as political and legal systems. The health systems, although differing in their institutional arrangements, are characterized by ineffective oversight and regulation, and inadequate administrative dispute resolution mechanisms. For example, in Colombia and Argentina, ‘quality-skimping’—i.e. where benefits included in the POS or PMO, respectively, are routinely denied—accounts for the majority of lawsuits. Incentives created for providers and insurance companies through a combination of inadequate pharmaceutical regulation, and reimbursement procedures also contribute both to the medications and services claimed, as well as compliance rates.¹⁰¹ These are more accurately understood as market failure and regulatory gap problems, and not ‘judicial activism’.¹⁰²

Further, administrative mechanisms for resolving disputes are often cumbersome or perceived as captured by insurance companies or governmental corruption. For example, In Mexico, while the percentage of complaints related to discontent with health services received by the National Commission of Medical Arbitration (CONAMED) has been relatively low, around 2 per cent, public human rights bodies are receiving approximately 3,000 right to health protection complaints each year.¹⁰³ According to the UN High Commissioner’s Mexico Office, because direct tools for demanding the right to health do not exist, individuals are instead turning to the amparo mechanism for the realization of this right.¹⁰⁴ Similarly, the Scientific-Technical Committees which were created in Colombia through Law No. 1428 to resolve claims for services outside the obligatory insurance scheme were widely perceived as rubber-stamping insurance company decisions, and had little impact on the use of tutelas.¹⁰⁵

Additionally, the combination of chronic political failure and extremely easy access to courts to resolve health claims (through protection writ mechanisms) has fostered an explosion in judicialization. Legislatures are often perceived as transactional rather than representative, and there is high distrust of executive branches that are perceived as corrupt, ineffectual and politicized.¹⁰⁶ It is worth pointing out for example that in Colombia the most litigated right is the derecho a la petición (right of petition) which is invoked when a bureaucrat fails to carry out his or her functions.¹⁰⁷ On the other hand, extremely low financial, legal, and procedural barriers make pursuing health rights claims through the courts an appealing option. In all of the countries discussed above, access to the courts is very easy, and people are guaranteed a decision within days.¹⁰⁸

Judicialization of health rights should not necessarily be celebrated. The exploitation of ‘rights’ for individual entitlements has the potential to exacerbate, rather than mitigate, underlying inequities associated with access to health services and treatments. More troubling that possible outliers, such as in a 1997 Brazilian case involving treatment in the United States for Duschenne’s muscular dystrophy, is evidence that courts may be systematically exacerbating inequities.¹⁰⁹ In Colombia, a study by Uprimny and Duran found that 35.2 per cent of tutelas have been brought by 53.11 per cent of those affiliated with the subsidized regime (containing half the benefits) and 35.8 per cent of tutelas brought by 46.89 per cent of those affiliated with the contributory regime in 2012.¹¹⁰ Further, substantive equality in health is not just a matter of socio-economic inequality; it is also a matter of life chances determined by the severity of illness or condition. In a study based on random sampling of cases decided by the Sala IV in Costa Rica, Norheim and Wilson found that 3 per cent of awarded treatments and services to be ‘high priority’ in accordance with generally accepted criteria of priority-setting, including the ‘worst off’ in terms of severity of illness, while over 70 per cent would have been low priority.¹¹¹ While the weightings of criteria may vary, the conclusions are troubling in that they suggest a distortion of budgetary priorities by the Caja.

Further, the reduction of health rights to individual claims may skew policies and programmes towards the subjects of litigation, and therefore away from systemic public health measures that have the potential to benefit the poor to a greater extent. It also may reduce robust egalitarian aspirations of health—and in turn social—justice to minimal packages of care.¹¹² High courts in the region have issued structural orders in health not only in response to a collective suit, but also in response to concerns about the inequity of individual concession of entitlements or the legitimate use of the judicial system, or sometimes both. Such remedies—whether in the case of T-760/08 in Colombia or the Matanza-Riachuelo case in Argentina—are appropriate for systematic violations,¹¹³ where complex orders relating to institutions and processes are involved, rather than dictating specific outcomes. Through dialogical remedies, courts may be better able to not only preserve their own constitutional legitimacy in addressing complex policy questions, but also catalyse democratic participation and dialogue between branches of government regarding spending priorities and critical health policy questions.¹¹⁴ No judgment relating to health rights has been more sweeping than T-760/08 in Colombia, which illustrates both the potential and challenges for dialogical justice in relation to health in the region.

The Law that reformed Colombia’s health system in 1993, Law 100, was a striking example not just of a wave of what Juan Arroyo has classified as ‘silent reforms’ in health in the region, due to the lack of democratic discussion about them, but also of the dysfunction in the Colombian political and legislative arena.¹¹⁵ Law 100 was defined and written by teams of technocrats, almost entirely insulated from public debate. It was rushed through the legislature, passed shortly before Christmas (23 December 1993), and implemented as quickly as possible through decrees, before a change of presidential administration would take place months later.¹¹⁶

The benefits packages were put together without a comprehensive epidemiological analysis of the needs of the population or the burden of disease or the institutional capacities of the health system, and were not systematically costed to calculate the capitation rates. After 1993, the benefits package was amended in piecemeal fashion, largely in response to political pressures rather than empirical evidence. Further, the managed competition system adopted in Law 100 required a regulated market, in which effective governmental agencies would guide the financing, organization and service delivery in the health system to align with public interest.¹¹⁷ But policies to improve the efficiency and equity of the health system were not implemented; regulations regarding eligibility and updating of services were neglected; complaints were not addressed in a systematic manner. In short, patients were left with no alternative but to use tutela writs.¹¹⁸

After Law 100 was enacted, there were brief periods of social mobilization around heath, from workers and certain user groups, but a strong social movement around health has not been sustained through the years.¹¹⁹ This is partially due to the nature of the health sector, with its strongly organized financial actors and often poorly organized or fragmented groups of patients. It is also due to the particular nature of Colombia, plagued by armed conflict, and other forms of violence as well as political capture, where outside of large urban areas social mobilization around health was scant to non-existent.

Despite efforts by the Constitutional Court to unify jurisprudence and to emphasize policy criteria, two problems persisted: (1) the EPS were recalcitrant with respect to implementing the policies and interpretations of ‘integral care’, ‘continuous care’, etc. called for by the Court; and (2) lower courts that heard tutela cases throughout the country were not well-equipped to determine whether medications and other treatments outside the defined obligatory benefit plan should be provided as a matter of right.¹²⁰ In Judgment T-760/08 the Court moved from a case-by-case approach to a structural approach that focused on resolving the systematic failures underlying the avalanche of individual claims.¹²¹

In the judgment, the Court explicitly asserted that a structural approach to the health system’s failings was necessary because ‘the organs of government responsible for the regulation of the health system have not adopted decisions that guarantee the right to health without having to seek recourse through the tutela’.¹²² Beyond resolving the twenty-two individual cases, the court addressed its diagnosis of the structural of the system, calling for remedies and reforms that included updating the bundles of health benefits, unifying the subsidized and contributory insurance regimes, improving the health system’s financial arrangements and achieving universal coverage.¹²³ The Court further called for adequate information regarding the institutional performance of different insurance companies.¹²⁴ Additionally, the Court asked the other branches of government to design administrative mechanisms to resolve disputes in order to reduce the amount of litigation, as well as the denial of both services and information by the providers/insurers.¹²⁵

As noted above, this judgment exemplifies Sabel and Simon’s theory of ‘experimentalist regulation’.¹²⁶ In the opinion, the Court established broad goals and implementation pathways, set deadlines and included the need for progress reports, but importantly left substantive decisions and detailed outcomes to governmental agencies.¹²⁷ In multiple interviews since the Judgment, the authoring Justice, Manuel José Cepeda and Auxiliary Justice Aquiles Arrieta have expressed that his form of remedy not only arguably preserves the democratic and institutional legitimacy of the judiciary better than command-and–control remedies, but also importantly avoids the possibility of serious judicial error in the interpretation of a specific aspect of the right to health. Indeed, this “weak” form of judicial review, in Mark Tushnet’s phrase, and the iterative process it triggers, ‘places into question the assumption that judicial review must involve coercive orders’ and can be used effectively to enforce social and economic rights through courts in a way that is still democratically legitimate.¹²⁸

Citing the government’s failure to take steps towards a unification of the contributory and subsidized plans as mandated in Law 100, the Court ordered the government to unify the POS-C and POS-S, immediately for children and progressively, in keeping with available resources, for adults.¹²⁹ But it did not propose what goods and services would be included in a unified POS for adults, or automatically equate unification with equalization; rather, it left that to the relevant government agencies but stipulated that the process of devising a unification plan was to be participatory (including the medical and scientific community as well as users of the system), transparent in terms of its reasoning, and evidence-based.¹³⁰

As noted above, the judgment established a monitoring process, modelled on an earlier judgment on internally displaced persons (IDPs), T-025/2004, also authored by Cepeda.¹³¹ The possibility of such a follow-up review was made possible by the tutela, although subsequent changes to the statute of the Constitutional Court in 2015 make such a review chamber more difficult to establish in the future. In 2009, only months after the judgment, Justice Cepeda finished his term in the Court.¹³² The follow-up chamber and attendant follow-up unit, was subsequently overseen by Justice Jorge Ivan Palacio.

The developments after Judgment T-760/08 have been shaped by conflict and co-operation among the Constitutional Court, the Executive and Legislative branches of government, and social movements. The Uribe administration (2002–2010) was openly resistant to the judgment. Arguing that health rights litigation had brought about an imminent financial collapse of the health system, Uribe employed extraordinary provisional powers in the Constitution, and in December 2009 declared an economic state of emergency and issued thirteen decrees that resulted in substantial changes to the immediate functioning of the health system.¹³³

The impact of the T-760/08 decision likely would not have been as great were it not for the Uribe administration’s autocratic response. The decrees created an uproar among patients and medical associations, as well as the general public. The decrees gave way to an unexpected level of protest that included doctors, medical students, health sector workers, and middle class contributors, whose benefits were significantly curtailed.¹³⁴ Importantly, these protests included people who were not typical social dissidents, such as physicians and members of the Catholic hierarchy.¹³⁵ By February 2010, mass protests were taking place across Colombia using the slogan: ‘Health is not a favour; it is a right!’¹³⁶

Although scholars have debated the impact, breadth, and strength of the social movements, Uribe’s response arguably promoted greater social mobilization around health in Colombia. Suddenly, the wide range of stakeholders that advocated for health as a right were aligned and galvanized in their advocacy and actions, and those who defended the model of health as a commodity were more visible. The Uribe administration’s reaction inspired the reorganization of civil society groups around health in the Alianza Nacional por la Salud (ANSA).¹³⁷

In April 2010, in Judgment C-252/2010,¹³⁸ the Constitutional Court declared the emergency decrees unconstitutional, except for the tax measures that funnelled more resources to the health sector.¹³⁹ However, although the decrees were declared unconstitutional, society’s response to the decrees showed how important the right to health and the tutela were to Colombians.¹⁴⁰ The Uribe government also paid a high political price for the emergency decrees.¹⁴¹

Between 2008 and 2016 the Court’s review/follow-up chamber issued 213 follow-up orders. The chamber also organized public hearings in which the Court invited representatives of public agencies, civil society and experts to present information on the implementation of the judgment’s orders.¹⁴² Although this monitoring process was designed to keep the Executive accountable, the process had several weaknesses. While the Court convened voluntary independent experts (of which this author was one), there remained a substantial lack of technical capacity that made interpreting data and other information difficult.¹⁴³ In addition, latent and at times open conflict—what one informant referred to as a ‘Cold War’—between the Court and the Executive resulted in extensive, abstract and complicated reports delivered by the Executive that were difficult for the Court to understand, and which made the monitoring process even more difficult.¹⁴⁴

When President Juan Manuel Santos took office in August 2010, health system reform was one of the first issues on the agenda. However, according to Everaldo Lamprea, former Auxiliary Magistrate of the Court in charge of the Follow-Up Unit during some of this time, even though the Santos administration recognized issues critical to the efficiency and equity of the health system, and passed legislation in Law 1438 that introduced important reforms, such as pharmaceutical policy, priority setting, and the significance of primary care, health promotion and prevention, between 2010–2014 it was the Review Chamber, composed of Jorge Ivan Palacio and two other justices, which most dramatically influenced the government’s decision making processes related to health.¹⁴⁵ In this period of time, the Review/Follow-Up Chamber convened two public hearings. The first was in July 2011, and the second was in May 2012. Lamprea characterizes these public hearings as spaces of authentic deliberation that have created substantial pressure on the government.¹⁴⁶

Other assessments regarding the impact of public hearings have been mixed. Some scholars and commentators argue that changes would have happened without public hearings. For example, in January 2012, the Ministry of Health decided to reinstate a more robust regulation of pharmaceutical prices in Colombia.¹⁴⁷

More broadly, some commentators have described them as potentially destabilizing mechanisms that prompted the government to commit to public policies designed to comply with the judgments orders.¹⁴⁸ Others have noted that although the Court created forums that made it possible to express extremely divergent opinions, there was no actual deliberation taking place—merely the declaration of widely differing views in a relatively ‘safe space’.¹⁴⁹ Indeed, some view Cepeda’s original opinion sceptically because it attempted to paste a deliberative process onto a profoundly unequal, polarized, and non-deliberative society.¹⁵⁰

Many agree on limits in practice even if they do not concur on the responsibilities: the hearings have not been open enough to guarantee the participation of the most vulnerable; access to information has not been easy to obtain for the public or even for many civil society organizations; and the criteria for participation in hearings, conferences, events, and consultations has not been clearly set.¹⁵¹

Yet, at the same time, commentators agree that the Court did spur the government to adopt the new statutory framework Law on Health, which was passed by Congress in May 2014. The law was reviewed and declared to be Constitutional by the Constitutional Court in Judgment C-313/14 with important revisions. In the decision, the Court provided for greater deference to physicians and limited the possibility of restriction on treatments by administrative mechanisms and bodies. The Court also made clear that the system was going to be based on a presumption of inclusions, and that the list of goods and services excluded should be determined based on a participatory process, as called for in the law.¹⁵² The Court also insisted on aspects of quality of care and asserted the need for integral care and the continuity of care, maintaining that the obligation to provide health services cannot be interrupted for any administrative or economic reasons.¹⁵³ Lamprea and García have argued that ‘Law 1751 and the Colombian Constitutional Court’s ruling C-324 are good indicators that Colombian policymakers and judges are trying to close the gap between formal and material health care coverage. We are particularly optimistic about the convergence between the right to health and health care coverage in Law 1751.’¹⁵⁴

I am not so sure. In its best light, Justice Cepeda’s original opinion can be read as an effort to catalyse a broader political discussion about the collective construction of ‘no’.¹⁵⁵ This approach in contrast recreates the pitfalls of implicit rationing, based on waiting lists and doctor discretion (which is greatly enhanced under the statutory law), which will invariably favour the better off in Colombian society. As Professor Oscar Bernal of the University of the Andes noted in an interview, by creating a list of exclusions, the statutory law reproduces an already existing problem of ‘gray zones’. Because everything is included unless it is explicitly excluded, the law may turn out to substantially expand uncertainty around covered services.¹⁵⁶ Just months away from the deadline to roll out the new statutory law, many agree that the Executive branch’s efforts to promote civic participation in defining the exclusions have not been meaningful thus far. Although the Ministry did surveys and media efforts it lacked any coherent methodology for deliberative participation. At the end of the day, there is justified fear that the government will collect data and information, and take unilateral decisions, without real feedback, leaving people to distrust the definition of benefits package.¹⁵⁷

The significance of the process to define the contours of the updated POS, and in turn, the right to health cannot be overstated. Although it may appear to be driven only by highly technical considerations, priority setting reflects profound ethical and normative judgments.¹⁵⁸ If health is to be taken seriously as a right in Colombia, the criteria to include or exclude goods and services from the benefits packages must be made explicit, visible to the public and be subject to justification by the political branches of government.¹⁵⁹ As Young and Lemaitre argue, it appears likely that ‘If the Colombian public does not understand the criteria used to include and exclude certain treatments in the new POS, and if the criteria for these decisions are not clear, people may very well continue to seek redress in massive numbers through court orders [tutelas], as the only mechanism through which to defend their right to health.’¹⁶⁰

Beginning in 2014, the Court had implemented a more dogmatic, approach to the monitoring process, demanding evidence of compliance in particular cases that, from its point of view, represent examples of weakness in the Ministry of Health’s initiatives.¹⁶¹ The very specific orders with which the Court demanded compliance—such as conditions in a departmental hospital—also arguably went beyond the original orders in T-760/08.¹⁶² Juanita Duran, a former Auxiliary Justice to Cepeda who went on to work in the Ministry of Health noted that the follow-up had ceased to be ‘dialogical judicialism’ when the Court got involved in such details rather than focusing on the original opinion’s structural orders.¹⁶³ At the same time, larger issues such as criteria for participation in priority-setting and evaluations of oversight and regulation see less front and centre on the Court’s agenda.

The Executive has reacted to this new more dogmatic approach and adversarial tone with some resistance, which may also get reflected in the implementation of the Statutory Framework Law which is set to begin in 2017. This experience of T-760/08 illustrates the importance of a shared understanding of the conditions for meaningful dialogue on grounds of rough equality, and of moving from an adversarial posture to a collaborative one the in the implementation of such a systemic judgment. It further demonstrates the need for setting explicit criteria, from the beginning, for both defining the parameters of such a monitoring process, and under what circumstances the Court could consider follow-up to be complete.¹⁶⁴

The experience of constitutionalization and judicialization of the right to health in the region shows a number of lessons and challenges. The setting of priorities to include within obligatory social insurance schemes in the region is generally not done in systematic, transparent fashion that provides room for social consultation and deliberation regarding the criteria for ranking services and treatments. Rather, health systems are often plagued by irrational priorities, and implicit forms of allocating care—through waiting lines, access to specialists, out-of-pocket payments. In this context of massive indifference from the executive and legislative branches of government, as well as chronic regulatory failures within health systems, it is unsurprising that people take advantage of the favourable opportunity structures that exist in many courts.

Structural reforms in constitutions have been as important as the enumeration of specific rights relating to health in constitutions across the region in producing the rise in judicialization. Individual exploitation of opportunities within systems has exploded, using constitutional litigation as an avenue, while broader collective efforts to reform the health systems through litigation are far less frequent. Such individual litigation for entitlements, while often better understood as regulatory gap problems, can challenge principles of formal equality by fostering queue-jumping for expensive medications and treatments by those with better access to justice. It also may distort health systems towards curative care, rather than investing in long-term structural infrastructure for the health system and in preconditions for health, which have wider benefits for the disadvantaged.

In response to the massive judicialization in health, as well as to other systemic and structural problems, some courts in the region, including in Argentina and Colombia, have issued broad structural remedies. These judgments need not be seen as isolated from social struggles. As Colombian legal scholar Rodrigo Uprimny explains: ‘As paradoxical as this sounds, judicial intervention, especially when linked to certain kinds of rights struggles, can also operate as a mechanism of social and political mobilization to the extent that it empowers social groups and facilitates their social and political action.’¹⁶⁵

Indeed, Judgment T-760/08 led not just to a new Statutory Law on Health but also to the reframing of the discourse around the health system and crisis in Colombia.¹⁶⁶ After the T-760/08 Judgment, civil society groups were quick to appropriate the definition of health as a fundamental right, which led to the origination of social organizations, academia and NGOs focused on activities around the statutory law.¹⁶⁷ However, the actual participation in redefinitions of the benefits scheme, or exclusions therein, or of new health policies, has been limited.¹⁶⁸ Meaningful dialogue in a sector as rife with asymmetries of power and technical information poses particular challenges to democratization through dialogue. Similarly, the backdrop of a deeply polarized society and non-representative government, which may be particularly acute in Colombia but is similarly present in other countries—poses a stark challenge to the necessary limit-setting process that fair-minded deliberation should foster.

Ultimately, health is a very sensitive reflection of social justice, and health systems are intimately connected to the degrees of social solidarity and democracy that exist in countries, as well as to the political and transnational drivers of health, such as austerity and intellectual property.

Indeed, the Latin American experience shows the serious limitations of shifting the political economy of health and systemic drivers of health rights violations in these countries. We should always recall that even the most progressive and innovative of courts can only offer feeble alternatives to more robust egalitarian aspirations for democratic states of law in which diverse people exercise control over the conditions of their social, political and economic lives. Just as Garcia Villegas and Uprimny have argued generally that ‘constitutional justice can become an important tool for democratic progress, as long as it is part of broader social struggles’, so too may be said of health justice in particular.¹⁶⁹

This chapter draws heavily on the following article: Alicia Ely Yamin, ‘The Right to Health in Latin America: The Challenges of Constructing Fair Limits’ (2019) 43 U Pa J Int’l L 695.