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.
Santos Rutschman, Ana. On The Judicialization of Health. Washington University Global Studies Law Review, v. 18, no. 3, p.559-568, 2019.