How Do Courts Set Health Policy? The Case of the Colombian Constitutional Court

Abstract

Constitutional Court of Colombia (the Court) handed down a decision (T-760/2008) that ordered a dramatic restructuring of the country's health system [1].The judgment came as the culmination of a wave of litigation to enforce the right to health, with tens of thousands of health rights cases before the Colombian courts each year [2].Since 1992, the Court has staunchly upheld rights to access and treatment in the context of a highly neoliberal state, and has not shied away from decisions with considerable resource implications.Colombia is a striking example of how broader regional and global trends can have an impact on judicial enforcement of claims for health goods and services [3][4][5][6].However, there is a wide-ranging debate in public health circles about the appropriateness and impact of such judicial interventions on health policy and health equity [5].Critics question, for example, whether judicial activism distorts prioritysetting and undermines the role of administrative and legislative bodies [3][4][5]7].Although it is too early to judge the implementation of the July 2008 decision, the sweeping 411-page judgment reaffirms that courts can enforce access to health goods and services as a matter of fundamental rights, even when there are substantial resource implications.It further indicates that courts can creatively define their role in health prioritysetting.

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