Octavio Luiz Motta Ferraz
Health and Human Rights 11/2
Published December 2009
Le plus grand mal est déjà fait, quand on a des pauvres à défendre et des riches à contenir. C’est sur la médiocrité seule que s’exerce toute la force des lois; elles sont également impuissantes contre les trésors du riche et contre la misère du pauvre; le premier les élude, le second leur échappe; l’un brise la toile, et l’autre passe au travers.
— Jean-Jacques Rousseau1
Courts are, at the end of the day, never an instrument of total societal revolution . . . never a substitute for direct political action.
— Upendra Baxi2
This article analyzes the recent and growing phenomenon of right-to-health litigation in Brazil from the perspective of health equity. It argues that the prevailing model of litigation is likely worsening the country’s already pronounced health inequities. The model is characterized by a prevalence of individualized claims demanding curative medical treatment (most often drugs) and by a high success rate for the litigant. Both elements are largely a consequence of the way Brazilian judges have interpreted the scope of the right to health recognized in Article 6 and Article 196 of the Brazilian constitution, that is, as an entitlement of individuals to the satisfaction of all their health needs with the most advanced treatment available, irrespective of its costs. Given that resources are always scarce in relation to the health needs of the population as a whole, this interpretation can only be sustained at the expense of universality, that is, so long as only a part of the population is granted this unlimited right at any given time. The individuals and (less often) groups who manage to access the judiciary and realize this right are therefore privileged over the rest of the population. This is potentially detrimental to health equity because the criterion for privileging litigants over the rest of the population is not based on any conception of need or justice but purely on their ability to access the judiciary, something that only a minority of citizens possess. This paper examines studies that are beginning to confirm that a majority of right-to-health litigants come from social groups that are already considerably advantaged in terms of all socioeconomic indicators, including health conditions. It is a plausible assumption that the model of right-to-health litigation currently prevalent in Brazil is likely worsening health inequities.