Courts and Social Change: Lessons from the Struggle to Universalize Access to HIV/AIDS Treatment in Argentina

Abstract

In this Article, Professor Bergallo examines recent adjudication of so-called “second-generation rights,” must notably the right to health. Specifically, she examines right-to-health litigation relating to HIV/AIDS treatment in Argentina. Bergallo first analyzes the initial difficulties that Argentina faced in implementing effective HIV/AIDS treatment before tackling the early litigation meant to correct the deficiencies. Bergallo argues that these early cases, most notably the landmark Benghalensis decision, resulted in reform at individual, policy, and societal levels. In contrast, the post-Benghalensis landscape has not resulted in similarly sweeping changes, as courts have preferred to render decisions based on individual inadequacy, not systemic failure. Because of this case-by-case curative decision-making, Bergallo argues that the current inequities that are pervasive in the Argentine health system may have been exacerbated.

Keywords: Right to Health, Human Rights Law, HIV/AIDS, Argentina

JEL Classification: I10, K10, K30