ON THE JUDICIALIZATION OF HEALTH.

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

1. INTRODUCTION

   The provision of health care has long been at the forefront of domestic and international debates, philosophical inquiries, and political agendas. A growing body of legal scholarship has added to the debate by examining the role of judicial review in the context of health-related litigation. What role, if any, should courts play in compelling the provision of health care or in furthering access to potentially life-saving medicines?

   This question intersects with multiple strands of the law. For instance, it has an institutional component that interrogates the function(s) of courts within systems of checks and balances. It ties into constitutional design choices, as the right to health is expressly recognized by some national constitutions while others are silent on the matter. And, perhaps more fundamentally, it invites us to revisit our notions of fairness and distributive justice in a world of soaring drug and health care costs.

   Judge Santos' timely piece, Beyond Minimalism and Usurpation (1) richly interweaves constitutional law analysis and empirical data on health-related litigation in Brazil to ponder these issues. Brazil, it should be noted, is not only a country where the right to health is constitutionally protected, (2) but also an epicenter of litigation surrounding socio-economic rights (3) and one of the global leaders in the access to medicines movement. (4)

   In the Article, Judge Santos proposes that we look beyond what he calls "the American models of judicial activism or minimalism" (5) when reflecting on the role that courts play or should play in interpreting and adjudicating health-related claims. Moreover, Judge Santos suggests that the Brazilian experience in this field might yield lessons that are relevant for other countries in the developing world. (6) In the first half of this response, I have chosen to highlight aspects of the Article that speak to these two prongs, as they carry a special resonance in today's debates on the provision of health goods and services.

   But I believe that Judge Santos is too modest in assessing the implications of his work and in connecting some of the topics covered in Beyond Minimalism and Usurpation to phenomena taking place well beyond the developing world. The second half of the response thus turns to parallels between some of the arguments put forth in the Article and selected aspects of health-related litigation in the United States. More broadly, I argue that Judge Santos' Article advances both scholarship and overall awareness of the phenomenon of judicialization of health, which both encompasses and transcends localized manifestations of judicial review of health-based claims.

2. HETEROEGENEITY OF RESPONSES IN THE DEVELOPING WORLD

   The enforcement of socio-economic rights has been fraught with conceptual constraints and (mis)apprehcnsions, as thoroughly described in Beyond Minimalism and Usurpation. But it has also been fraught with practical constraints, even when courts take on a dynamic role (7) in the caseby-case application of socio-economic rights. Nowhere is this more apparent than in the resource-scarce jurisdictions of the developing world. In this Part, I highlight a few examples of these problems--not because they should deter the equality-enhancing function of courts as they operate in the socio-economic arena, but because they further Judge Santos's point that courts in the developing world "must exercise creativity and institutional innovation" (8) when deciding issues that involve socioeconomic rights.

   In exploring the role of courts as catalysts (9) for the advancement of the right to health, Beyond Minimalism and Usurpation presents empirical data on litigation taking place in Brazil, (10) but it also hints at similar experiences in other countries." Looking elsewhere in the developing world, Judge Santos notes in passing (12) a landmark case dealing with the right to health in South Africa, which I believe merits further contextualization, as it helps illustrate some of the practical hurdles surrounding the enforcement of the right to health. In Minister of Health v. Treatment Action Campaign (TAC), a civil society organization successfully sued the government in 2002 for its failure to provide and implement programs to prevent child-to-mother transmission of HIV. (13) The claim was rooted in article 27(1)(a) of the South African Constitution, which establishes, inter alia, that "[e]veryonc has the right to have access to health care services, including reproductive health care." (14) The Constitutional Court directed the government to make the anti-retroviral drug Nevirapine available to HIV-positive pregnant women and newborns of HIV-positive mothers. (15)

   The TAC case, as it became known, is often hailed as a pivotal moment in the history of judicial review and enforcement of socio-economic rights. (16) Yet, several commentators have pointed out that the ruling of the Court in this case produced only limited welfare-enhancing gains: the program subsequently set up by the government to distribute Nevirapine reached only an estimated thirty percent of women who needed it. (17)

   TAC is part of a larger set of cases probing the boundaries of the right to health qua social right in South Africa. Another case that would be instructive to add to the examples considered by Judge Santos is Soohramoney, which dates from 1997 and involved a patient in need of dialysis. (18) Thiagraj Soobramoney was refused treatment at a state hospital after being diagnosed as terminally ill and having exhausted his personal resources...