Judicialization 2.0: Understanding right-to-health litigation in real time

ABSTRACT

Over the past two decades, debate over the whys, the hows, and the effects of the ever-expanding phenomenon of right-to-health litigation (‘judicialization’) throughout Latin America have been marked by polarised arguments and limited information. In contrast to claims of judicialization as a positive or negative trend, less attention has been paid to ways to better understand the phenomenon in real time. In this article, we propose a new approach—Judicialization 2.0—that recognises judicialization as an integral part of democratic life. This approach seeks to expand access to information about litigation on access to medicines (and health care generally) in order to better characterise the complexity of the phenomenon and thus inform new research and more robust public discussions. Drawing from our multi-disciplinary perspectives and field experiences in highly judicialized contexts, we thus describe a new multi-source, multi-stakeholder mixed-method approach designed to capture the patterns and heterogeneity of judicialization and understand its medical and socio-political impact in real time, along with its counterfactuals. By facilitating greater data availability and open access, we can drive advancements towards transparent and participatory priority setting, as well as accountability mechanisms that promote quality universal health coverage.

KEYWORDS:

• Right-to-health litigation
• judicialization studies
• open access data and participatory research
• universal health coverage
• Latin America

Acknowledgments

The authors wish to acknowledge the organisers and participants of the ‘Right to Health and Priority Setting in Latin America: Research and Policy Agendas’ meeting, held in Washington DC in April 2017, where the authors initially presented the conceptual and methodological framework of the ‘Judicialization 2.0’ approach outlined in this article. In addition, the authors wish to thank the individuals ‘judicializing’ – using legal mechanisms to seek access to medicines and health care – who shared their experiences with us, as well as the medical, public health and legal officials involved. All authors report no direct or indirect political engagement (e.g. lobbying) on the issue of judicialization of health or financial or other relationships with pharmaceutical companies that could influence their work. Whether as scholars, researchers or lawyers, we have each advocated for the right to health and the principles of participation and equity. Gabriela Rondon has represented patients in Brazil who have used the legal system to seek access to care.

Disclosure statement

No potential conflict of interest was reported by the authors.