Taking the Right to Health Seriously: Implications for Courts and Health Systems

Abstract

This article seeks to fill a gap between legal discussions regarding the normative content of the right to health and public health and development discussions about health system reform and Universal Health Coverage [UHC]. It sets out conceptual implications of defining health as a right, for health and health systems, and in turn for the involvement of courts in decision-making regarding health. Although appending remedies to broken health systems can exacerbate inequities, the article asserts that by taking systemic approaches the judiciary can promote both horizontal and vertical equity on the path to UHC, as well as foster more effective regulation of private actors. The judiciary does not substitute its own judgment for that of political organs of government, but rather can help to ensure that governmental actions are reasonable and justified in light of normative commitments. Taking the right to health seriously creates a narrative of health, and health care, as an asset of social citizenship, rather than one of largesse or markets, and in so doing, reflects an understanding of human beings as active agents in the social construction of their well-being, and not merely passive patients or consumers of care.