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

40 Pages Posted: 22 Mar 2021

See all articles by Alicia Ely Yamin

Alicia Ely Yamin

Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics; Harvard University - Harvard Law School; Partners in Health; Chr. Michelsen Institute (CMI) - Center on Law and Social Transformation

Date Written: 2018

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.

Suggested Citation

Yamin, Alicia Ely, The Right to Health in Latin America: The Challenges of Constructing Fair Limits (2018). University of Pennsylvania Journal of International Law, Vol. 49, No. 3, 2018, Available at SSRN: https://ssrn.com/abstract=3791021

Alicia Ely Yamin (Contact Author)

Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics ( email )

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Harvard University - Harvard Law School ( email )

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Partners in Health ( email )

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Chr. Michelsen Institute (CMI) - Center on Law and Social Transformation ( email )

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