Using the Right to Health to Promote Public Health while Avoiding the Trap of Judicialization

1. GABRIEL ARMAS-CARDONA, ESQ.
Gabe.Armas-Cardona@nyu.edu
@GArmasCardona
AMERICAN PUBLIC HEALTH ASSOCIATION
ANNUAL MEETING
DENVER, COLORADO
NOVEMBER 1, 2016
Using the Right to Health to
Promote Public Health while
Avoiding the Trap of Judicialization

2. Presenter Disclosure
The following personal financial relationships with
commercial interests relevant to this presentation
existed during the past 12 months:
2
Gabriel Armas-Cardona, Esq.
No relationships to disclose.

3. Challenge of Court-driven Access to Medicine
Patients are suing to access medicines that are
prohibitively expensive.
1. How should courts respond?
2. Does the right to health have anything useful to
contribute here?
3

4. What is the Right to Health?
 “ … [T]he right of everyone to the enjoyment of the
highest attainable standard of physical and mental
health.”
 Article 12(1) of the International Covenant of Economic, Social
and Cultural Rights (ICESCR)
 It is justiciable; a court can adjudicate a violation
 Not an absolute right:
Limited “to the maximum of [a State’s] available
resources,” (ICESCR, Art 2(1))
4

5. Justiciability Success Story: HIV/AIDS Medicine
 By the 90s, there were medicines that helped control
HIV/AIDS (e.g. AZT)
 The LGBTI community in the US fought hard for these
 Global South governments didn’t include them in public
health systems
 In part because of inertia and in part because of high costs
 Incongruity in countries that care about rights
 It looks like a violation of the right to life to deny medication to
someone dying from HIV/AIDS
 Marginalized communities were most effected; very strong argument
that equity demanded a response
 Governments acquiesced. Brazil was the first by
including ARV treatment in public health system in 1997
5

6. The Downside of Justiciability: Judicialization
 Judicialization: courts make policy choices that are
better suited to expert agencies or the political
branches
 Underlying issues of Judicialization:
 Judges cannot review an entire health program in an
individual case
 Judges should not be second-guessing experts
 Prioritizes patients that can hire a lawyer, i.e. the middle class
 Pragmatic Concern: Judicialization can shift
resources away from priority public health concerns
to individual, expensive treatments
6

7.  Low barrier of entry for Brazilian courts
 Public Ombudsman and good access to justice
 Writ of security, Mandado de Segurança (like the writ of
amparo throughout Latin America): a legal tool to get
immediate judicial attention for an alleged rights violations
 The Supreme Court constitutionalized a right to
health that explicitly ignores available resources!
7
Judicialization:
Brazil’s Access to Medicine cases

8.  “Between the protection of the inviolable
rights to life and health … and the upholding
… of a financial and secondary interest of
the State, … the judge [is compelled] to only
one possible solution: that which furthers
the respect of life and human health . . . .”
 Sup. Fed. Ct. Recurso Extraordinário No. 271.286-8 of 2000
8
Judicialization:
Brazil’s Access to Medicine cases

9. Judicialization:
Litigation explosion
9

10. 10
0.059
4
20
47
0
10
20
30
40
50
2003 2007 2008 2009
MILLIONUSD
Federal Ministry's expenditure on
court-mandated drugs
Judicialization:
Court-mandated expenditure

11. Judicialization: Bad, but not that Bad
 Judicialization complained of only in drug cases
 Justiciability tackles many issues
 Non-discrimination
 Public goods like sanitation
Brazilian courts were able to bypass political gridlock
 Unnecessary long waits
People died while waiting for health care
Allegedly, delays due to institutional inefficiency
11

12. Judicialization: Bad, but not that Bad
 Regressive redistribution was slight compared to
general public health system
 Arguably an example of the inverse equity hypothesis
 Most medicines sued for were already in the national
plan. Off-plan drugs were typically similarly priced.
 Drug costs were only 1-2% of MoH drug budget
12

13. Hepatitis C and Sofosbuvir
 About 3.2 million Americans have Hepatitis C
 Leading infectious disease killer in the US
 The FDA approved the Hepatitis C cure Sofosbuvir
(Sovaldi) in late 2013
 Sofosbuvir has a very high success rate (>90%) and
less side effects than previous methods
 Included on WHO’s Model Essential Medicine List
 Problem: Sofosbuvir’s list price is $84,000 for an
entire regimen.
 Still cost-effective from a public health perspective!
13

14. Prisons and Medicaid Health Obligations
 Both state prisons and Medicaid must provide
healthcare
 Medicaid can deny a treatment only if its prescribed
use “is not for a medically accepted indication” as
determined by the FDA.
 Prisons can’t demonstrate “a deliberate indifference
to serious medical need.”
 No restriction based on available resources!
14

15. Sofosbuvir Breaking State Budgets
 Even with discounts, state prisons paid a median
price of $76,084 per patient in 2015
 $63,509 for sofosbuvir/ledipasvir (Harvoni)
 Matt Salo, executive director of the National
Association of State Medicaid Directors:
Providing drugs to all those infected with Hepatitis C
“would blow up state budgets.”
 Treating Oregon prisoners would cost 4x total prison
health care budget
15

16. States Respond by Restricting Access
16
19
29
34
37
0 5 10 15 20 25 30 35 40
HIV status
Limit prescriber type
Liver disease stage
Drug and alcohol usage
Restrictions State Medicaid
programs impose on Hepatitis C
treatment (n=42)
None of these restrictions meet medical criteria

17. How Courts can Contribute to Good Policy
1. Use dialogic justice – talk with the agency
 Review—with some deference—state agencies’ claims of resource
availability. Ensure efficient allocation.
  Colombia’s T-760; South Africa’s Soobramoney
2. Have the agency create a policy w/ stakeholder input
 Ensure evidence-based and non-discriminatory
 HIV/AIDS cases
3. Insist on a time-bound plan
 Make the state agency set a deadline for full coverage
 Brazilian sanitation cases
 Monitor implementation
 India’s Vineet Narain; T-760; Federal oversight of CA prisons
 Optimistic ideal: require a larger health budget
17

18. Thank you for your time
18
Questions?
Gabriel Armas-Cardona, Esq.
Gabe.Armas-Cardona@nyu.edu
@GArmasCardona