Litigating health rights: Can courts bring more justice to health?

Background: Beginning with HIV/AIDS cases, the last fifteen years have seen a tremendous growth in the number of health rights cases. Yet questions still persist as to when and how litigation can lead to greater social justice in health and enhance the functioning of health systems, rather than distorting practices. In a number of countries, courts are in effect setting health policy and shaping funding priorities. Yet, little systematic attention has been paid to the equity implications of this litigation. Purpose: Based on a comprehensive study of litigation in Argentina, Brazil, Costa Rica, Colombia, India and South Africa, this presentation will trace the beginnings of health rights litigation; will review factors leading to judicial activism in health around the world; will stress the importance of differentiating contexts and kinds of interventions; and will discuss different methodologies for measuring impacts of litigation. Conclusions: Health rights litigation is extremely varied around the world. Factors that must be considered in assessing equity implications relate to the legal opportunity structure as well as other dimensions of the legal system, the organization of the health system, and the way in which the executive branch responds to judicial decisions.