Role of the Courts in the Progressive Realization of the Right to Health: Between the Threat and the Promise of Judicialization in Mexico

Abstract

A moral right to health or health care, given reasonable resource constraints, implies a reasonable array of services, as determined by a fair deliberative process. Such a right can be embodied in a constitution where it becomes a legal right with similar entitlements. What is the role of the courts in deciding what these entitlements are? The threat of "judicialization" is that the courts may overreach their ability if they attempt to carry out this task; the promise of judicialization is that the courts can do better than health systems have done at determining such entitlements. We propose a middle ground that requires the health system to develop a fair, deliberative process for determining how to achieve the progressive realization of the same right to health or health care and that also requires the courts to develop the capacity to assess whether the deliberative process in the health system is fair.

Expanded HTA: Enhancing Fairness and Legitimacy

“…This can enhance the accountability of the HTA process; however, the courts can have the opposite effect given that they are also subject to capture by vested interests. 8 Once again, the independence of the courts (and thus their ability to enhance the legitimacy of the HTA process) depends on the degree of accountability that the political process imposes on them. Ultimately, no process is safe from abuse-and the remedy for such abuse is always political.…”

Judicialization and Health Policy in Colombia: The Implications for Evidence‐Informed Policymaking

“…There is now an extensive literature on the judicialization of politics across policymaking domains (Ginsburg, ; Hirschl, ; Vallinder & Tate, ) including an expanding subliterature on this phenomenon in Latin America (Couso, Huneeus, & Sieder, ; Daniels et al, ; Menicucci & Machado, 2010; Rios‐Figueroa & Taylor, ; Ryan, ; Saavedra‐Herrera, ; Scribner, ; Sieder, Schjolden, & Angell, ; Uprimny, ; Vale, ). While it is beyond the scope of this article to review the scholarship in this field exhaustively, it provides important context for the analysis presented here.…”

“…More specifically, it focuses on the use of the tutela mechanism—a protection writ through which any legal person can go before a relevant judge in the civil, criminal, or labor courts and request protection of their constitutional rights (Cepeda‐Espinosa, , p. 552)—by Colombian citizens seeking provision of core health services and treatments. The article builds on the expanding body of scholarship on the judicialization of health policy in Latin America in general (Biehl, Amon, Socal, & Petryna, ; Brinks & Forbath, ; Daniels, Charvel, Gelpi, Porteny, & Urrutia, ; Ferraz, ; Figueiredo, Osorio‐De‐Castro, & Pepe, ; Gargarella, ; Menicucci & Machado, ; Vargas‐Peláez, Rover, Leite, Buenaventura, & Farias, ; Wang, ), and in Colombia more specifically (Bernal et al, ; Cepeda‐Espinosa, ; González & Durán, ; Landau, ; Nunes, ; Uprimny, ; Yamin & Parra‐Vera, ).…”

What does it mean to put new hepatitis C drugs on a list of essential medicines?

“…32 Courts are more likely to show due deference if a country establishes a fair and transparent deliberative process for deciding on resource allocation. Such a process should make the rationales for allocative decisions public so that courts can decide whether they are fair and consistently applied.…”