On the Judicialization of Health
18:3 Washington University Global Studies Law Review 559 (2019)
13 Pages Posted: 25 Feb 2020
Date Written: February 21, 2019
Abstract
The provision of healthcare 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 healthcare 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 healthcare costs.
In this Article I reflect on these questions as I respond to Judge Pedro Oliveira Santos' piece, "Beyond Minimalism and Usurpation," forthcoming in volume 18 of the Washington University Global Studies Law Review.
Keywords: courts, judicialization, health, right to health, judicial review, Brazil, Colombia, Michigan, constitutional law
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