Litigating Health Rights

Can Courts Bring More Justice to Health?

Alicia Ely Yamin, Siri Gloppen, Alicia Ely Yamin, Siri Gloppen

• Publisher: Human Rights Program, Harvard Law School
• Year: 2015
• ISBN:
  9780986106200
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The last fifteen years have seen a tremendous growth in the number of health rights cases focusing on issues such as access to health services and essential medications. This volume examines the potential of litigation as a strategy to advance the right to health by holding governments accountable for these obligations. It includes case studies from Costa Rica, South Africa, India, Brazil, Argentina and Colombia, as well as chapters that address cross-cutting themes.The authors analyze what types of services and interventions have been the subject of successful litigation and what remedies have been ordered by courts. Different chapters address the systemic impact of health litigation efforts, taking into account who benefits both directly and indirectly—and what the overall impacts on health equity are.

CASE STUDIES

Chapter 3

ARGENTINA

Courts and the Right to Health: Achieving Fairness Despite “Routinization” in Individual Coverage Cases?

Paola Bergallo*

In Argentina, the judicialization of health has emerged against the backdrop of changed legal contexts—most notably, the 1994 reform of the Constitution and the incorporation of a handful of human rights treaties and procedural innovations that citizens and lawyers have been trying to enforce ever since (Centro de Estudios Legales y Sociales 2008). Drawing from that context, this chapter explores the contours and potential effects of a particular segment of the judicialization of health that remains largely unexamined from an empirical perspective: the routinization—or sustained accumulation and clustering of cases around certain demands—of right-to-health claims filed by individuals seeking coverage of a variety of health services or drugs.

In this chapter, I begin with a description of the broader legal and institutional context of the transformed role of courts. After an overview of right-to-health cases in Argentina, the discussion then focuses on cases that claim coverage of services or drugs sometimes included in and sometimes absent from the Plan Médico Obligatorio (Obligatory Medical Plan, or PMO), Argentina’s basic health plan by which all health-care insurers must abide.

Legal discussions of right-to-health litigation in the country have tended to celebrate individual cases for their successes as test cases or for their legal merits in granting access to the right to health (Courtis 2008a; Damsky 2006). However, after exploring the accumulation and persistence of such litigation over time—as demonstrated by the cycles of routinization, discussed below—I caution against such isolated and static assessments. This may especially be the case given that a majority of the claims surveyed in this chapter sought very individualized solutions for different types of regulatory and implementation gaps in the PMO’s coverage, even though such gaps can be attributed largely to flaws in the design of the health system, the lack of state governance capacities (both legislative and executive), and long-standing political blockages for broad health reform.

Indeed, as Octavio L. Motta Ferraz discusses in his chapter on Brazil, data suggest that—in spite of motives for praising the growing justiciability of the right to health—the predominance of a traditional private-law style of litigation that fails to address inequities and structural governance constraints in health policy, coupled with the aggregated effects of accumulated cases, may ultimately reinforce inequalities. In other words, judicialization may be exacerbating problems rather than remedying them.

Legal Enabling Factors for Litigation

As Catalina Smulovitz (2010) has illustrated for other areas of judicialization in Argentina, a variety of enabling legal conditions foster intervention by the courts in social policy. Certain traits of Argentina’s legal culture and legal institutional histories set the scene for courts’ increasing participation in protecting human rights. Regarding the judicialization of health in particular, courts’ increased involvement can be connected to new substantive and procedural legal developments, an increased perception of courts as independent bodies for ensuring government accountability, and the evolution of legal support structures with various degrees of specialization.

The Substantive Basis for Right-to-Health Claims

Argentina has a federal system of government, and health is regulated at the national and provincial levels. Although social rights were not included in Argentina’s first Constitution, written in 1853, they acquired a strong constitutional presence during the first half of the following century through the introduction of the ideals of social constitutionalism.¹ In 1957, after the short life of the 1949 Constitution, the corporativist labor rights version of social constitutionalism entered the current text through article 14 (bis). The new section offered, among other things, grounds for the consolidation of a social security system that included a state-run pension system and a contributory health system for workers.

In 1994, a new constitutional convention, originally summoned to remove the barriers for presidential re-election, introduced new institutions, rights, and principles that would reshape the textual protections of social rights, particularly the right to health. The new text contained several references to social justice and equality, modeling an Estado Social de Derecho (Abramovich 2009). The granting of constitutional status to a handful of human rights treaties in article 75.22 was one of its main innovations. This incorporation gave rise to a process of internalization of human rights norms that deeply transformed the original specification of rights in the constitutional text and that continues to evolve today.

The current constitutional protection of the right to health stems from several references scattered throughout the text and from human rights treaties. The Constitution protects the collective right to “a healthy and balanced environment fit for human development” (art. 41) and consumers’ rights “to the protection of their health, safety, and economic interests” (art. 43). Moreover, article 75 delineating Congress’s mandate creates a responsibility to legislate in keeping with a social justice agenda² and to provide certain specific health protections on the basis of equality.³ The right is further defined by several references in the human rights treaties included under article 75.22.⁴ Also, at the federal level, a set of statutes establishes the legal framework for the provision of the right to health.⁵ This regulatory framework is supplemented and additionally developed by the twenty-four provincial constitutions and provincial health regulations. The twelve provincial constitutions amended since 1984 expressly recognize a right to health⁶ and often detail principles and rules governing local health systems.

These textual innovations set the principles and standards for the development of several lines of precedents by which federal and state courts have defined fragments of the right to health. A comprehensive description of the multiplicity of doctrines and their evolution exceeds the scope of this chapter; however, several studies have analyzed and classified the main holdings of right-to-health claims decided by the Supreme Court in the last decade (Abramovich and Pautassi 2008; Courtis 2008a). In a majority of the cases surveyed by scholars, the Court has acknowledged the constitutional status of the right to health as a result of its protection in human rights treaties incorporated into the Constitution.⁷ The Court has also held that the right creates negative and positive duties and has enforced it horizontally across contributory insurers. For example, negative duties have included protection against unilateral termination of health services by different health insurers,⁸ and positive duties have encompassed the state’s obligation to guarantee access to treatment.⁹ Moreover, in various cases against public (provincial) and contributory insurers, the Court has stressed the federal government’s role as subsidiary guarantor.¹⁰ Human rights treaties have often been cited in support of the different doctrines, and the Court has repeatedly asserted the government’s international responsibility under the treaties signed. Human rights norms have also been found to ground the positive duties of contributory insurers, regardless of contractual provisions.¹¹ Lastly, in other cases, the Court has defined segments of the right to health of vulnerable groups, such as children,¹² people with disabilities,¹³ people with severe diseases,¹⁴ and marginalized indigenous communities.¹⁵

Procedural Reforms

Procedural tools and expanded standing rules have also offered a framework for the increased use of courts for right-to-health demands. Summary proceedings for constitutional rights protections, such as the amparo and the recently created amparo colectivo (protection writ and collective protection writ, respectively), have provided enabling procedural tools for different styles of legal mobilization on the right to health (Maurino et al. 2005). A majority of the individual cases brought before Argentine courts have used amparo proceedings to address disputes regarding insurance contracts and coverage through constitutional arguments. In certain collective cases, groups of individuals or nongovernmental organizations have resorted to the amparo colectivo, created in 1994, which the courts have positively received.

In addition, the procedural availability of preliminary injunctions, for which the courts have loosened requirements, has been an important tool for the judicialization of health. A majority of the individual cases described below obtained preliminary injunctions. The relatively easy access to preliminary measures has greatly shaped the substance of the disputes in court proceedings.

Courts, Accountability, and Support Structures

The presence of legal texts, precedents, and procedures is a necessary but not sufficient enabling condition for judicialization. The availability of what Varun Gauri and Daniel Brinks (2008) term “logistical variables” is another requirement. In effect, a functioning court system with clearly established jurisdiction over the relevant rights claims is another key structural precondition for the judicialization of health. In Argentina, it was not until the late 1990s—a decade after the return to democratic rule—that courts across the country began to accept their role in the justiciability of social rights (Abramovich 2009). Since then, the existence of several barriers to accessing the judicial system (see, e.g., Scioscioli 2005) do not seem to have deterred people from turning to the courts for the enforcement of the right to health.

Moreover, researchers have argued that various factors may have played a role in increasing the accountability function of courts, their independence, and public perception of their independence. These factors include the 1994 constitutional reform of procedures for judicial appointments, the establishment in 2003 of new standards for nominating Supreme Court and federal judges, and the subsequent appointment of four prestigious Supreme Court judges after the impeachment of two of their predecessors (Smulovitz 2010). Also, public confidence in the judiciary has varied greatly, reaching a low point during the 2001–2 economic and political crisis. Since then, available data on trust in the judiciary produced annually by the School of Law of the Universidad Torcuato Di Tella show a moderate increase in public confidence.¹⁶ Furthermore, confidence in the courts as a site for rights claims may have also improved as a result of courts’ recent role in providing forums for seeking justice for massive human rights violations of the 1970s (Centro de Estudios Legales y Sociales 2008).

Finally, the existence and strength of support structures—that is, human rights lawyers and organizations as well as financial resources—are important factors in determining potential litigants’ capacity to bring rights claims to courts (Epp 1998). According to Smulovitz (2010), an overall transformation of support structures occurred over the last two decades, with roots that can be traced to lawyers in the human rights and labor rights movements. The existence of new legal advocacy organizations seems to have been an enabling condition for the judicialization of health, as demonstrated by the involvement of some of Argentina’s growing legal advocacy groups (such as Centro de Estudios Legales y Sociales and Asociación por los Derechos Civiles) in the litigation of multiple right-to-health claims. Yet litigants have also used four other types of legal representation in right-to-health cases: private lawyers, public defenders, ombudspersons, and consumer rights lawyers.

The structure of litigation costs has also been an important factor for enabling right-to-health litigation. In particular, the availability of the beneficio de litigar sin gastos, which provides a waiver for plaintiffs in case of the claim’s failure, has been an incentive for private lawyers to work for free in cases of uncertain results. Indeed, lawyers hav...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgments
• Introduction
• Case Studies
• Cross-Cutting Issues
• Conclusion
• References
• Contributors
• Index
• Index of Cases and Laws