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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Right to Health

Jennifer Sellin

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 24 September 2022

Subject(s):
Republic — Right to health — Social rights — Individual rights — National security — Structure

General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey

A.  Historical Evolution

Health services, facilities, and goods are generally regarded as valuable public goods, which are intimately connected to the protection of human dignity and, consequently, the protection of human rights (dignity and autonomy of individuals). As such, they have become important issues of international and national concern. The right to health is codified in several international—and regional—human rights instruments, as well as in many national constitutions. Today, almost every country is party to at least one human rights treaty that addresses the right to health or other health-related rights setting out international obligations that must be implemented within the domestic context (UNOHCHR and WHO ‘Factsheet No. 31’ 1; Perehudoff 142–43). Just over half of written constitutions include a right to health (Kavanagh 335). This entry aims to provide a succinct overview of the development, core meaning, and judicial interpretation of the right to health from an international human rights and comparative constitutional law perspective (international human rights law and municipal law).

Throughout history, we see general acceptance of the need for collective action to address the health of individuals. Threats to public health, such as poor sanitation and infectious diseases, have always been a concern to those in power (Tobin 35) (right to sanitation). Yet, none of the very first human rights instruments, such as the English Bill of Rights (1689), the French Declaration of the Rights of Man and of the Citizen (1789), or the American Bill of Rights (1791), made any reference to the right to health or health-related rights (Tobin 16–17, 37). It is only at the beginning of the last century that we see the emergence of a constitutional right to health.

The origins of the right to health, as we know it today, and, more generally, of socioeconomic rights, can be traced back to the experiences of Latin American countries and a pragmatic approach of how best to deal with inequality and human suffering (Tobin 21). For example, although the Constitution of the United Mexican States: 5 February 1917 (as Amended to 2018) (Mex) does not contain a specific provision on the right to health, it does include provisions which cover occupational health and, for example, prohibit unhealthy or dangerous work for women and minors, ensure medicines and medical care for members of a workers’ family; and oblige the government to take preventive measures as regards—foreign—epidemics (Art. 73XVI; Art. 123A.II; Art. 123B.XI).

The evolution of the right to health is closely connected to the importance of health in achieving and maintaining international peace and security (Tobin 23). Even though the Covenant of the League of Nations did not protect human rights, it did recognize the need to protect individuals’ health, for example through humane working conditions and the prevention and control of disease (Art. 23). The United Nations Charter (1945) requires international assistance and cooperation to address, amongst others, international health problems (Arts 55–56). Consequently, the World Health Organization (‘WHO’) (World Health Organization (WHO)) was created as a specialized agency of the UN. There is where we find the first international recognition of the human right to health. The preamble to the Constitution of the WHO (1948) finds that ‘the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’ [emphasis added]. Moreover, it provides the first definition of health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.

With the adoption of the Universal Declaration of Human Rights (1948) (‘UDHR’) the existence of the international right to health was confirmed, although it was not included as a specific right but rather bundled together with a series of socio-economic rights in Article 25 UDHR. The subsequent International Covenant on Civil and Political Rights (1966) (‘ICCPR’) only refers to health in relation to public health measures being an allowable restriction to the freedom of speech, freedom of movement, freedom of assembly, freedom of association, and the freedom to manifest one’s religion—and not in the context of a right. Yet, the International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’) asserted the independent status of the right to health through its Article 12 that recognizes ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’.

B.  International Human Rights Law

The field of the right to health is rich in international and regional legal standards, political commitments, and commentaries on State obligations. This section will discuss the international protection of the right to health focusing on the ICESCR since at the time of writing (June 2021) 171 States are party to the ICESCR and therefore under an obligation to implement the right to health domestically. In this analysis use will be made of the relevant General Comments issued by the UN Committee on Economic, Social and Cultural Rights (CESCR). These expert commentaries, although formally non-binding, are highly authoritative explanatory documents for States parties aiding them with the implementation of the obligations found in a particular human rights treaty (Ahmadou Sadio Diallo Case (Republic of Guinea v Democratic Republic of the Congo) (2010) (ICJ) para. 66; Toebes 223–24).

1.  Content/Scope

The right to health, as codified in Article 12 ICESCR, is a fundamental human right. It encompasses two broad components: health care and underlying determinants of health (CESCR General Comment No. 14 para. 11). As such, it is inextricably linked to other human rights, such as the right to life, adequate housing, an adequate standard of living, education etc (right to housing; right to education). Article 12(2) ICESCR lists a number of elements that are explicitly included such as maternal, child, and reproductive health, occupational health, the prevention, treatment, and control of diseases, and access to health facilities, services, and goods.

In general terms, the right to health demands that health services are available, accessible, acceptable, and of quality, also referred to as the AAAQ framework (CESCR General Comment No. 14 paras 12–21). That means health services should be available in sufficient quantity within the State party (CESCR’General Comment No. 14’ para. 12(a); CESCR General Comment No. 22 para. 12); physically, geographically, and economically accessible on a non-discriminatory basis (CESCR General Comment No. 14 para. 12(b)i–iv; CESCR General Comment No. 22 paras 15–19); acceptable in the sense of respectful of medical ethics and patient confidentiality, culturally appropriate, and sensitive to gender, age, disability, and life-cycle requirements (CESCR General Comment No. 14 para. 12(c); CESCR General Comment No. 22 para. 20); and of good quality meaning evidence-based, scientifically and medically appropriate, and up-to-date (CESCR General Comment No. 14 para. 12(d); CESCR General Comment No. 22 para. 21).

Availability demands, first, suitable and sufficient resources and, second, the willingness and capacity to utilize them appropriately and effectively (Saul 996). Economic accessibility or affordability requires that payment for health services and underlying determinants should be based on the principle of equality to ensure that poorer households are not disproportionately burdened with health expenses (CESCR General Comment No. 22 para. 17). Below, we will see that particularly the unavailability or unaffordability of health care services has been the subject of judicial scrutiny by domestic courts.

2.  State Obligations

10  The right to health is not a right to be healthy but encompasses a number of freedoms and entitlements so that individuals are able to attain their highest possible standard of health (CESCR General Comment No. 14 paras 8–9). States parties are under a duty to progressively realize the right to health to the maximum of their available resources, including through international assistance and cooperation, using all appropriate means (Art. 2(1) ICESCR; CESCR General Comment No. 3 para 1). As such, access to health facilities, goods and services will vary among States parties depending on numerous factors, including a state’s developmental level. The Committee has noted, though, that there is a strong presumption that retrogressive measures, measures which take a step back in fulfilling the ICESCR’s rights, are not permissible under the ICESCR (CESCR General Comment No. 14 para. 32). Simultaneously, states parties have immediate right to health obligations, such as the prohibition of discrimination as found in Article 2(2) and Article 3 of the ICESCR, and so-called ‘core obligations’, which ensure the satisfaction of, at the very least, the minimum essential levels of the Covenant’s rights and without which the rights would be devoid of any meaning or relevance (CESCR General Comment No. 3 para. 10). Guided by the Alma-Ata Declaration (International Conference on Primary Health Care 1978), states’ right to health core obligations include, amongst others, the obligation to ensure: access to health facilities, goods and services without any form of discrimination, especially for vulnerable and marginalized groups; equitable distribution of health facilities, goods, and services; access to the minimum essential food so as to ensure freedom from hunger; access to basic shelter, housing, and sanitation, and an adequate supply of safe and potable water; and access to essential medicines (CESCR General Comment No. 14 para. 43). These core obligations are prioritized state obligations under the ICESCR (CESCR General Comment No. 3 para. 10; CESCR General Comment No. 14 para. 47; Forman (2016) 536–38).

11  States parties’ obligations are conceptualized into three categories: a duty to respect, meaning states must abstain from interfering directly or indirectly with individuals’ enjoyment of the right to health; a duty to protect, that is prevent third parties from interfering; and a duty to fulfil, that is adopt appropriate measures, whether legislative, administrative, budgetary, or judicial, towards the full realization of the right to health (CESCR General Comment No. 14 para. 33; CESCR General Comment No. 22 paras 39 et seq). As such, states parties have a significant margin of discretion in determining the most appropriate and feasible measures to implement the right to health at national level (CESCR General Comment No. 3 para. 4; CESCR General Comment No. 14 para. 53). The CESCR recommends legislative implementation finding that domestic incorporation of the right to health can significantly enhance accountability in case of possible violations (CESCR General Comment No. 14 paras 36, 59). Although health rights may be protected in national laws and policies, constitutional protections are typically more difficult to repeal. Moreover, some argue that the constitutional protection of the right to health has a practical beneficial effect on populations’ health (Kavanagh 355–56). However, in that regard it must also be noted that countries without any constitutional health-related rights may still have high-quality health care systems (Flood and Gross 66; Heymann 652).

12  The value of a human rights-based approach to health lies in that it acknowledges that individuals who need health care are rights holders with legally binding entitlements, while crystallizing—new—state obligations that can be enforced by courts (Kavanagh 333). Such an approach goes beyond charity and humanitarianism. The ‘legalization’ or ‘judicialization’ of the right to health has become most prominent in the last two decades. Particularly newly created constitutions in Latin America and Southern Africa have inclusive health—and other social—rights in response to legacies of dictatorships and apartheid that resulted in great disparities between the rich and poor (Flood and Gross 64). It is especially in response to the HIV/AIDS pandemic that domestic litigation has played a key role (Cabrera and Ayala).

C.  Constitutional Texts

13  Constitutional health-related rights show great variation across time and space. For example, in 1970, only 17 per cent of written constitutions encompassed explicit health-related rights, while in 2010 that percentage grew to 51 per cent (Kavanagh 335; see furthermore Heymann 650–51). So today just over half of the world’s constitutions protect some form of the right to health. That includes countries from every region of the world. In 2010, between 40–60 per cent of countries in most regions had constitutional health-related rights, although Oceania and Western Europe showed a lower coverage (Kavanagh 335–36). Moreover, countries at all income levels have adopted constitutional health-related rights: 60 per cent in low-income, 58 per cent of lower-middle-income, 62 per cent of upper-middle-income, and 29 per cent of high-income countries (Kavanagh 335). Finally, legal tradition seems connected to the probability of a country constitutionalizing the right to health: 68 per cent of civil law countries, compared to 26 per cent of mixed and 15 per cent of common law countries (Kavanagh 335).

14  Constitutional approaches to protecting health differ significantly both in their focus and specificity. Constitutions refer to different types of health-related rights, such as the right to health, public health, or health care services, although these are not mutually exclusive and often addressed in the same part or article (Heymann 640, 650).

15  Some constitutions enshrine the right to health in very general terms (Art. 26 of the Constitution of Burkina Faso: 2 June 1991 (as Amended to 5 November 2015) (Burk Faso); Art. 35 of the Constitution of the Plurinational State of Bolivia: 7 February 2009 (Bol)), or express the protection of public health as a state obligation (Art. 34 of the Constitution of Romania: 21 November 1991 (as Amended to 2003) (Rom); Art. 84 of the Constitution of the Bolivarian Republic of Venezuela: 15 December 1999 (as Amended to 2009) (Venez)). However, a constitutional right to health care, meaning access to health care or medical services, facilities, and goods, is probably the most common (Heymann 646; Art. 77 of the Constitution of the Republic of Angola: 21 January 2010 (Angl); Art. 45 of the Constitution of the Republic of Belarus: 15 March 1994 (as Amended to 2004) (Belr); Art. 23 of the Constitution of Belgium: 4 February 1831 (as Amended to 2014) (Belg); Art. 31 of the Constitution of Iraq: 15 October 2005 (Iraq); and Art. 38 of the Constitution of the Socialist Republic of Vietnam: 1992 (as Amended to 2013) (Viet)). A literal reading of a constitutional right to health/medical care suggests a narrower scope compared to the international right to health, which includes both health care and the underlying determinants for health. Full implementation of states’ ICESCR obligations would cover both elements. Some constitutions, for example, enshrine preconditions for health as separate, individual rights (see ss 24, 26, 27(1)(b–c), and 29 of the Constitution of the Republic of South Africa: 18 December 1996 (as Amended to 2012) (S Afr)).

16  The scope and specificity of constitutional duties varies greatly. Article 58 of the Constitution of the Republic of Croatia: 22 December 1990 (as Amended to 2013) (Croat) simply states that ‘[e]veryone shall be guaranteed the right to health care in conformity with the law’, while Article 105 of the Political Constitution of the Republic of Nicaragua: 19 November 1986 (as Amended to 2014) (Nicar) guarantees free health care for the vulnerable sections of the population, and Article 18 of the Constitution of the Arab Republic of Egypt: 15 January 2014 (Egypt) ‘commits to the establishment of a comprehensive health care system for all Egyptians covering all diseases’ and even allocates a percentage of government expenditure—no less than three per cent of Gross Domestic Product—to health.

17  Some constitutions, many from Latin American countries, even make specific commitments to protect and fulfil access to medicines (Perehudoff 145, 149), which is a core obligation pertaining to the right to health under the ICESCR. Article 363(7) of the Constitution of the Republic of Ecuador: 28 September 2008 (as Amended to 21 December 2015) (Ecuador) provides that the State shall be responsible for:

Guaranteeing the availability and access to quality, safe and effective medicines, regulating their marketing, and promoting the national production and use of generic drugs that meet the epidemiological needs of the population. With respect to access to medicine, public health interests shall prevail over economic and commercial interests.

D.  Constitutional Jurisprudence

18  More and more constitutions now protect health-related rights, yet it is only in recent years that a body of jurisprudence has emerged in this respect. That will be the focus of this section, although it must be noted that this is by no means an exhaustive analysis, but rather intended to be illustrative of different approaches. Indeed ‘divergent trends in litigation have emerged—from country to country and region to region—as court have grappled—or declined to grapple—with the interpretation and enforcement’ of health-related rights (Flood and Thomas 177).

1.  No Constitutional Health-Related Rights

19  High-income countries in particular have been slow to implement the right to health. The assumption, sometimes, is that the right to health is realized through the creation of a universal health care system. Without constitutional protection, health rights litigation can be limited in scope or even nearly non-existent. Examples include the United States, where courts have largely rejected rights-based claims to health care (Hoffman 355–57), but also New Zealand, where individuals rarely seize the courts to challenge denials of access to health care (Manning 34).

20  By contrast, even though Canada’s Charter of Rights and Freedoms (1982) (Can) does not include the right to health—or medical—care, individuals have taken to the courts to litigate health rights through various means. Health rights litigation has had ‘mixed success in Canadian courts, making it hard to neatly encapsulate the content of the ‘right’ to health’ (Flood 86). Although the Supreme Court of Canada (Cour suprême du Canada) acknowledged the possibility that the right to life, liberty, and security of the person (s 7 of the Constitution of Canada (Canadian Constitution Acts, 1867 to 1982): 1 January 1982 (as Amended to 2011)), may confer positive obligations onto the government (Gosselin v Quebec (Attorney General) (2002) (Can)), the courts have generally been restrained in their approach to the right to life, rarely reading substantive, positive health rights into it (Flood 87). A notable exception to such restraint is Eldrige v British Columbia (Attorney General) (1997) (Can), where the failure to provide sign language translation in hospitals was found to be a violation of equality rights in Section 15 of the Canadian Charter of Rights and Freedoms (1982) (Can). The most success, however, has been as regards negative health rights claims, challenging government restrictions on individual liberty. In Chaoulli v Quebec (2005) (Can) the plaintiffs argued that the ban on private health insurance in the face of long wait times was a violation of their rights to life and security under Quebec’s Charter of Human Rights and Freedoms (1975) (Can) and Section 7 of the Canadian Charter of Rights and Freedoms (1982) (Can). The Supreme Court in a four-three decision agreed and renounced the prohibition on the basis of the Quebec Charter, while it was a tie—three-three with one judge not ruling—on the question whether there was a violation of Section 7 of the Canadian Charter of Rights and Freedoms (1982) (Can). In essence Chaoulli legitimized a two-tiered health care system, a ruling that has been criticized (Flood 94–96), although legally speaking the impact of the judgment is limited only to the Quebec province.

2.  Non-Justiciable Constitutional Health-Related Rights

21  Some constitutions do contain health-related rights but consider these to be non-justiciable. The justiciability of socio-economic rights as been a contentious issue ever since the emergence of such rights (Cabrera and Ayala). It is closely related to the traditional dichotomy that views civil liberties and political rights as negative rights on the one hand, and socio-economic rights as positive rights on the other. Socio-economic rights are considered core elements of national policy with budgetary implications and, in light of the principle of separation of powers, it is then considered inappropriate for the non-democratically elected judiciary to adjudicate such cases. Yet this conceptual distinction between the two sets of rights is oversimplified and outdated. Human rights are universal indivisible, interdependent and interrelated (Vienna Declaration and Programme of Action, UN World Conference on Human Rights para. 5).

22  Where the right to health is non-justiciable it can be aspirational rather than guaranteed. For example, the Constitution of the Republic of Uganda: 8 October 1995 (as Amended to 2017) states that ‘all Ugandans enjoy rights and opportunities and access to … health services’ and specifies that the state shall ‘take all practical measures to ensure the provision of basic medical services to the population’ (National Objectives and Directive Principles of State Policy, Arts XIV(b) and XX). Yet these National Objectives and Directive Principles of State Policy, being located outside of the substantive sections of the Constitution, reflect a commitment but are not considered legally binding rights conferring obligations onto the State (Malagala 94). As such, they are non-justiciable, meaning that an alleged violation cannot be reviewed before domestic courts.

23  The absence a justiciable right to health does not necessarily say anything about the state of a country’s public health system. For example, Sweden has a robust public health care systems even if faced with challenges such as growing demand and diminished capacities. Article 2 of the Constitution of the Kingdom of Sweden, The Instrument of Government: 28 February 1974 (as Amended to 2009) (Swed) views the right to health as programmatic, that means it is ‘incumbent upon the public institutions … to promote social care and social security and good conditions for health’. It is not considered an individual, justiciable right. The role of—constitutional—jurisprudence in the context of health care is therefore secondary, although there has been a growing role for European law characterized as ‘quasi-constitutional protection emerging around health rights’ (Lind 76). Similarly, Article 22 of the Constitution of the Kingdom of the Netherlands: 24 August 1815 (as Amended to 2017) (Neth) states that ‘the authorities shall take steps to promote public health’. The right’s programmatic nature means it is considered having a weaker standing compared to other constitutionally protected individual rights (Den Exter 194). Moreover, because the Constitution prohibits constitutional judicial review (Constitution of the Netherlands, Art. 120), constitutional right to health jurisprudence is absent. Individuals seeking access to health care services have, though, on occasion successfully been able to invoke international and European—human rights—law (Den Exter 200–5).

3.  Overcoming Non-Justiciability

24  In other countries, domestic courts have overcome the arguments raised against the justiciability of the right to health in different ways.

(a)  India

25  Articles 37 and 47 of the Constitution of India: 26 January 1950 (as Amended to 16 September 2016) Main Text, Part IV Directive Principles of State Policy (India) provide that ‘the improvement of public health’ is among one of the State’s ‘primary duties’. However, this Constitution also explicitly states that these Directive Principles of State Policy ‘shall not be enforceable by any court’. Nonetheless, the Indian Supreme Court expanded the fundamental and justiciable right to life (Constitution of India Art. 21) into a positive obligation on the State that entitled everyone to a life with dignity and the bare necessities of life (Mullin v The Administrator (1981) (India)). Subsequently it recognized that the right to health is an integral part of a meaningful right to life (Consumer Education and Research Centre v Union of India (1995); Paschim Banga Khet Samity v State of West Bengal (1996) (India)). The judge-led movement towards public interest litigation was an important facilitator for the judicial protection of all human rights in India (Grover 434–35).

26  The Indian Supreme Court has continuously shaped the right to health. For example, it has linked the State’s duty to improve public health with the right to life with respect to securing access to affordable medicines (Panikurlangara v Union of India (1987) (India); Novartis AG v Union of India (2013) (India); Grover 435–39); stressed the importance of timely emergency medical care (Pt Paramanada Katara v Union of India (1989) (India); Paschim Banga Khet Samity v State of West Bengal (1996) (India); and linked women’s reproductive rights to her right to life (Srivastava v Chandigarh Administration (2009) (India)). It also attempted to reconcile the State’s constitutional health-related duties with its financial capacity holding that the right to health could not be absolute in a welfare State (State of Punhav v Ram Lubhaya Bagga (1998) (India)) (social or welfare state). This unquestioned acceptance of the State’s argument that resources are limited has been criticized because it ignored the retrogressive aspect of the State’s policy (Grover 441).

(b)  Colombia

27  A different example is the 1991 Colombian Constitution which introduced a Constitutional Court with exclusive constitutional review powers and the possibility of an accion de tutela. That opened the door to increased health rights litigation (Kavanagh 352; Lamprea 139).

28  The right to health is entrenched in the Political Constitution of Colombia: 1 July 1991 (as Amended to 2015) (Colom). Specifically, its Article 49 states that: ‘[p]ublic health and environmental protection are public services for which the State is responsible. All individuals are guaranteed access to services that promote, protect and restore health.’ The efficient provision of such public services to all is the duty of the State (Constitution of Colombia, Art. 365). In addition, it mentions that health is a basic right of children (Constitution of Colombia, Art. 44).

29  A tutela claim allows any person to seek judicial protection when their fundamental constitutional rights are threatened. It provides for ‘immediate protection’, that is within ten days, and without many procedural hurdles (Constitution of Colombia, Art. 86). Yet, the Constitution only permits tutela claims for the protection of fundamental rights, which does not include the health-related rights protected in Article 49. But similar to the Indian experience, the Colombian Constitutional Court overcame this non-justiciability early on, through the so-called ‘connectivity doctrine’, that is by inferring that the right to health was a fundamental right when related to the protection of life (Decision T-484/92 (1992) (Colom); Cepeda Espinosa and Landau 169). Later on, the Court’s jurisprudence evolved into a full-fledged recognition of the right to health as a fundamental, and therefore justiciable, basic right, moving away from the connectivity doctrine (Decision T-760 (2008) (Colom); Cepeda Espinosa and Landau 172).

30  Several broad decisions, in the Court’s early existence, set the stage for a sharp increase in health rights litigation (Lamprea 140). One landmark case involved more than 400 parents, filing a tutela claim against the health authorities for not providing a free vaccination programme against meningitis. The Constitutional Court concluded that this failure violated the children’s right to health (Decision SU-225/98 (1998) (Colom)).

31  Most of the tutelas filed demanded access to health services, such as medicines or medical procedures, that were already included in the basket of health services that private health insurances had to legally provide but did not do so. In such cases, the courts did not create new entitlements, but remedied those situations where the government proved ineffectual in enforcing health insurances to eliminate such unlawful barriers (Kavanagh 352). In addition, though, the Constitutional Court created an impressive precedent on access to so-called ‘excluded’ health services, that is medicines and medical procedures that were not included in the mandatory basket of health care services (Lamprea 141–42; Cepeda Espinosa and Landau 169–70). Many patients did not have access to such ‘excluded’ health services, because they were unaffordable and only exceptionally covered by private health insurers where it would cure the patient. Particularly, in response to the plight of people living with HIV/AIDS, the Constitutional Court ruled that private health insurers had to provide ‘excluded’ antiretroviral drugs where a patient’s life was at stake, as long as the prescription was for the generic form and came from the patient’s treating physician (Decision SU-480/97 (1997) (Colom)). The private health insurer could then reclaim the cost from the State. It even noted that this principle extended to treatments that prolonged life expectancies or relieved symptoms for patients with incurable diseases and made similar pronouncements as regards cancer treatments, dialysis, transplants and, even, overseas medical treatments (Lamprea 144).

32  Interestingly, tutela claims were remarkably often successful for the plaintiff. They became a widely used and effective mechanism to enforce the right to health, which is one of the most litigated human rights in Colombia (Lamprea 144–45; Cepeda Espinosa and Landau 170–71). It is clear that ‘the tidal wave of tutelas on health were in response to a fundamentally broken health system’ (Kavanagh 353). At the same time, concerns arose whether tutelas’ individualized nature and—financial—impact could possibly undermine health equity (Flood and Gross 67–77; Cabrera and Ayala), although the evidence of that is not conclusive (Lamprea 146).

33  In response, the Constitutional Court issued a sweeping judgment in 2008 (Decision T-760/08 (2008) (Colom)), joining 22 tutelas, that aimed to reform the system so as to mitigate or eliminate the structural barriers that had led to such high number of cases. It held that the right to health is an autonomous fundamental right to which all individuals are entitled. It established the scope and content of the right to access health care services in light of constitutional case law, also noting the sharp increase in health-rights litigation and the structural, regulatory failures in the benefit plans. It issued orders to resolve the individual cases collected and that addressed the system as a whole, which were numerous and complex (Cepeda Espinosa and Landau 176). Even though its implementation has not been problem free, the Court’s jurisprudence has had a marked effect on Colombia’s health system. It exemplifies how health-rights litigation can draw attention to inequalities, thereby facilitating government accountability and push for health care reforms.

4.  A Justiciable Constitutional Right to Health—South Africa

34  The South African experience is markedly different. The South African Constitution explicitly entrenches justiciable health-related rights, including for children and prisoners (Constitution of South Africa, ss 12, 27, 28(1)(c), and 35(2)(e)). Even so, it has far less right to health-related jurisprudence, especially when compared to the high-intensity justiciability rate of this right in Colombia (Young and Lemaitre 197).

35  In Section 27 of the Constitution of South Africa, the universal right to health reads as follows:

  1. 1.  Everyone has the right to have access to … (A) health care services, including reproductive health care …

  2. 3.  No one may be refused emergency medical treatment.

36  As the South African Constitution allows for the judicial review of legislation and executive policies, it thus renders the right to health justiciable (Constitution of South Africa, s 38; Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa (1996) (S Afr) para. 78). In the context of South Africa’s inherited legacy of apartheid, the enshrinement of a justiciable right to health was a turning point.

37  Seemingly inspired by the international right to health, Section 27(2) and Section 7(2) of the Constitution of South Africa mirror the language of Article 2 ICESCR and the CESCR’s General Comments, requiring the State to take reasonable measures, within its available resources, to progressively realize the right to health, as well as to respect, protect, promote, and fulfil it.

38  The impact of the newly constitutionalized right to health was tested almost immediately when the Constitutional Court rejected an appeal for dialysis from a dying man, finding that the public health system’s guidelines were applied rationally and in good faith (Soobramoney v Minister of Health (1997) (S Afr)). However, it was President Mbeki’s government’s response, or better said lack thereof, to the HIV/AIDS epidemic that was a much more critical test for the right to health in South Africa.

39  Minister of Health v Treatment Action Campaign (2002) (S Afr) is the most important right to health-related case in the South African context. The Treatment Action Campaign contended that the government’s policy to limit access to antiretroviral drugs, ie Nevirapine, that could halve the risk of HIV transmission from mother to child was a violation of the constitutional right to health. By the time the case reached the Constitutional Court, the Court had already demonstrated its willingness to interfere with government decisions, most notably in its Grootboom decision where it established the so-called reasonableness standard to assess State compliance with its constitutional obligations relating to socioeconomic rights (Government of the Republic of South Africa v Grootboom Case (S Afr) (2000)).

40  In Treatment Action Campaign, the government justified its policy to make Nevirapine available only in a small number of test sites throughout the country on the basis of the necessity to study the effectiveness of a possible future nation-wide programme. The very act of judicial review was at the heart of the government’s defence. The Constitutional Court found that the government’s policy did not meet the reasonableness test, because it ignored urgent health needs and excluded significant segments of society, namely children born in public hospitals to predominantly poor mothers, who consequently would have significantly worse health outcomes and even decreased life expectancies. The government itself acknowledged that the cost of the medicine was not a factor, and therefore any arguments on the lack of resources did not carry any weight. Moreover, the medicine was both safe and effective. Consequently, the Court ordered the government to remove, without delay, any restrictions and make Nevirapine available in the public sector, as well as to design and implement a comprehensive programme to prevent mother-to-child-transmission (Treatment Action Campaign (2002) (S Afr); Forman and Singh 309–10).

41  Later on, the Court confirmed that the constitutional right to health also includes a right to access to affordable medicines (Minister of Health v New Clicks South Africa (2005) (S Afr)). Nonetheless, the Court’s reasoning demonstrates that the right to health does not bestow an individual entitlement to health care services and State obligations are constrained by progressive realization within available resources. That has raised concerns about the Court’s willingness to enforce health-related rights in a meaningful way (Forman and Singh 315–16). Even so, the South African experience demonstrates that a justiciable, constitutionally protected right to health can effectively be enforced by domestic courts, and even advance health equity as long as it is accompanied by political will.

42  Yet, not all countries with constitutions that contain justiciable socio-economic rights have taken such an approach. As opposed to the approach retained by the South African Court Japan’s Supreme Court adopted ‘a number of techniques which tend to encourage restraint and avoid constitutional conflict’ (Kuramochi 256) thereby only very weakly enforcing health rights claims, even though the Japanese Constitution contains a justiciable right to health (Constitution of Japan: 3 November 1946 Main Text, Chapter III Rights and Duties of the People, Art. 25 (Japan)).

E.  Concluding Remarks

43  In conclusion, this entry advocates for a human rights-based approach to health. The constitutional protection of health-related rights is one possible step in such an approach. As we have seen, constitutional health-related rights show great variation across countries, and domestic courts have different approaches when it comes to health-related constitutional jurisprudence. Academics and courts have only just started identifying useful approaches to use human rights jurisprudence to promote health.

Select Bibliography

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