LEGITIMACY & LITIGATION: THE RIGHT TO HEALTH CARE.

• Author: Flood, Colleen M.
• Position: Response to article by Pedro Felipe De Oliveira Santos in this issue, p. 493

Much ink has been spilt by scholars over how courts should adjudicate socio-economic rights, frequently by scholars in countries that do not expressly include such rights in their constitution. Pedro Felipe de Oliveira Santos describes well the formalist approach that drives many jurists and scholars to argue for minimalism on the part of courts adjudicating socioeconomic rights. (1) The separation of powcr(s) argument is that courts are not democratically elected-governments are-and so the latter should be responsible for the complex trade-offs involved in allocating public funds to social programs.

When I present on litigation of health rights and discuss the volume of cases in countries like Brazil (just shy of 393,000 cases in 2014) (2) or Colombia (113,000 claims in 2012) (3), the usual reaction from legal scholars in high income countries is one of shock and disapprobation: this is not how courts should act. And if courts are to adjudicate socio-economic rights, even progressive scholars seem far more comfortable with the South African jurisprudence where the volume of successful health rights cases is very small. And contentment with this conservative approach persists despite the fact of massive inequalities in access to health care in South Africa, which have only grown larger since the end of apartheid. (4)

In Canada, where section 7 of the Canadian Charter (5) guarantees the right to life, liberty and security of the person, the courts have, so far, largely dismissed claims for public funding of health care. (6) Canadian courts have been willing to use section 7 to strike down legislation seen as unreasonably intrusive of personal liberties-for example, criminal laws limiting access to abortions, (7) medical-aid-in-dying, (8) and medical marijuana. (9) However, courts have not been willing to employ section 7 to require governments to provide public coverage or to protect against cuts in public coverage, even in the case of claims by refugees cut off from coverage of essential life-saving health care. (10) Even more insidiously, (11) Canadian courts have used the Charter to strike down a law limiting opportunities for privatization of health care on the grounds that wait times in the public system jeopardize security of the person (and possibly one's life) and thus patients have a right to seek out care privately. (12) These same wait times of course impact those without the means to pay for care privately or whom, because of age or disability, are excluded from private insurance plans; however, the court's dismal interpretation of the Canadian Charter fails to protect their interests. Bolstered by the Chaoulli decision, (13) litigation is presently underway to employ the Charter to strike down other laws protective of public medicare. (14) The approach of the Canadian courts reflects a longstanding liberal conception of rights. In classical liberalism, rights are articulated as restrictions on the state's power that, in Locke's articulation, prohibit it from denying a citizen's life, liberty, or property. (15) In this tradition, rights mostly confer a negative duty on the state not to act, and are not only devoid of any distributional potential, but, to the contrary, may also entrench and exacerbate existing inequalities within society.

But, as I have hinted at, and as Pedro Felipe de Oliveira Santos argues in Beyond Minimalism and Usurpation? (16) perhaps the global stance of legal scholars towards a U.S. style of minimal review for socio-economic rights does not have diamond-hard legitimacy. Indeed, let us start with the simple proposition that whilst the doctrine of separation of powers has great constitutional import, so too must the fact that, in a country like Brazil, socio-economic rights are explicitly enshrined in the constitution. (17) A blinkered worldvicw overlooks the fact that approximately 70% of constitutions worldwide now contain health-related guarantees, while the right to health is justiciable in approximately 40%. (18) Developed-world scholars work within a belief system that socio-economic rights lack legitimacy and that even countries desirous of greater socio-economic rights move in small, incremental steps; but where such rights are explicitly part of a country's constitution, arguments grounded in parliamentary...