By John Thorpe
Good health is a precondition for the enjoyment of most
of the rights we cherish. A young woman
crippled by opportunistic HIV/AIDS infections faces significant challenges to
vote, let alone to contest barriers to vote.
Good health ensures that we can work and work productively. It also promotes early childhood education
and gives children an opportunity to perform at their highest potential. As The Global Network has noted,
the broad negative social impact that neglected tropical diseases have on
education, economic development, and women’s empowerment is illustrative of the
fundamental nature of good health.
Recognizing that the right to health is a pillar of
individual and collective dignity, the international community enshrined it in
article 12 of the International
Covenant on Economic, Social, and Cultural Rights. Yet historically, the right has lacked broad
institutional support and reliable mechanisms for enforcement. Recent
codifications of the right to health into national constitutions are
changing this by, among other things, opening up the possibility of litigation
for individuals seeking access to care and medication. Brazil serves as a good example. Since codifying the right to health in its
constitution, Brazil has witnessed a veritable explosion in health related
litigation (in Brazil’s Rio Grande do Sul state, health related lawsuits filed
against the state have
increased over 1000% from 2002-2009).
Although this trend in litigation is raising a number of questions
regarding sustainability and equity, one thing is clear: litigation is moving
the public discourse from debate over the right to health’s epistemological
validity in the rights framework to inquiries into pragmatic methods and
optimal institutional structures to ensure its enjoyment in practice. Litigation, while not a permanent answer to
health inequity and in need of reform, is providing poor Brazilians with access
to necessary medication and with an effective tool to claim their right to
health where current distributional structures are failing. 