Journal of Human Rights | March 31, 2015Read the Publication
As more states incorporate health-related rights into their national constitutions, judges are increasingly being asked to enforce access to entitlements as well as to regulate the conduct of executive branches in relation to health. Decisions made by judicial bodies in the context of health rights litigation have far-reaching consequences, not only directly on litigants but also often indirectly on the broader population. This article argues that remedies should not be appended to broken health systems. For a meaningful “circle of accountability,” legal opportunity structures that inhibit access to justice must be considered alongside the framing of rights during adjudication, as well as procedural protections for litigants, in addition to the role of the judiciary in monitoring and enforcement of decisions post-judgment. The application of a reflective, purposive approach at each of these points in the judicial process has significant potential to enhance the impact of judicialization of health rights, in terms of equity and accountability within health systems, and beyond. But access to justice and the ability to enforce judgments must also be contemplated by political actors from the beginning of the policy cycle.