Advancing the Right to Health Through Litigation

This chapter discusses some of the aspects and areas of contention around right to health litigation. It begins with a brief overview of the history of right to health litigation, including litigation that protects health through the use of other health-related rights that are socioeconomic, civil, or political in nature, such as the right to life. It then introduces some of the main arguments used to challenge the increasing use of the courts to promote the right to health and the public policymaking that this often entails. These arguments question whether courts are breaching democratic principles, such as separation of powers, when they order the provision of medicines or treatments, or rule on regulatory aspects of the health system. Next, the chapter explores whether a codified right to health is necessary to foster right to health litigation, and the effects that individual litigation may have on effectuating broader systemic changes that could benefit population health. It concludes with a brief discussion on whether courts are promoting or undermining one of the central tenants of the right to health: health equity.

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