The Right to Health in Latin America: The Challenges of Constructing Fair Limits

Abstract

There is increasing scholarly attention to judicial enforcement of the right to health, but too often it extrapolates general lessons from one country or region. The impacts of judicial enforcement depend largely on the reasons people turn to courts, the nature of judicial decisions, and the extent to which courts can open political opportunity structures for greater equity and transparency. Drawing on case studies from five countries in the region, the Article argues that the experience of constitutionalization and judicial enforcement of the right to health in Latin America shows a number of lessons and challenges. Against backdrops of extreme social inequality, with poor responsiveness from the executive and legislative branches of government, as well as chronic regulatory failures within health systems, it is unsurprising that people take advantage of the favorable opportunity structures that exist in many courts. Nevertheless, contrary to widespread thinking, easy access to justice, combined with individual decisions can promote queue jumping and potentially exacerbate inequities in health systems. The example of a mega-judgment in Colombia shows both that under certain circumstances apex courts can play important roles in catalyzing action by political branches but also suggests that there are significant limitations of transformative constitutionalism, at least in the health field.