By Alicia Ely Yamin
Chile is one of the few countries in Latin America that has not amended its constitution post-dictatorship. That is set to change on October 25th when the country will hold a plebiscite on constitutional reform.
Any new Chilean Constitution may well follow the path of constitutional reform elsewhere in the region. These reforms, which occurred in the late 1980s and 1990s, and more recently in Mexico, expanded social rights through expanding enumerations and/or incorporation of international human rights law into the constitutional text through “constitutional blocs” (bloques de constiucionalidad).
In situating what is at stake, it is important to recall that the evolution of health rights in Latin America is closely linked to contestation over boundaries between private morality and public policy, between individual and social responsibility, and between the role of the state and markets.
In a region of staggering social inequalities that are reflected in social determinants of health, as well as health outcomes, health systems have been sites of social contestation over democratic inclusion, from the incorporation of health and social protections for workers in the wake of enormous immigration, to the extraordinary Chilean movement for social medicine, to neoliberal market-based reforms. Moreover, since colonial times, when health was generally conceived of as charity organized by religious institutions, there has remained a deeply embedded discourse of health conditions as divine punishment for “sin,” which is most acutely evidenced in relation to sexual and reproductive health.
Since neoliberal reforms in the region in the ’80s and ’90s, chronic democratic deficits and a lack of capacity to effectively implement health policies and regulate health systems, combined with easy individual access to courts through protection writs (e.g., amparos), have created high demand for health care through judicial enforcement in other countries in the region.
One way to conceptualize the judicialization of health rights in the region is filling the gap between supply and demand for health care. However, this argument disregards a principal implication of construing health, including health care, as a right, which is to understand the health system not as a marketplace, but as a core social institution in a modern democracy, where claims for health protection are assets of legal and social citizenship.
Understood in this light, health systems embed normative decisions, from macro-levels, such as solidarity in financing and fairness in priority-setting processes, to the most micro-level, regarding treatment of patients. Further, courts have a democratically legitimate role to play in ensuring that the decisions taken in health systems are justified and reflect equal concern and respect for all members of society.
Judiciaries do and have tried to play this role in multiple countries in the region. A large number of health rights cases in the region evaluate the reasonableness of laws and regulations, seek to fill regulatory and compliance gaps, and address the needs of collective groups, such as indigenous communities or populations facing a common health threat. Further, we have learned from other countries’ experiences in the region that it is fallacious to make claims about the equity effects of judicialization decoupled from consideration of priority-setting processes and regulation of private actors, including pharmaceutical companies.
Moreover, apex courts in the region—notably the Argentine Supreme Court and the Colombian Constitutional Court—have used a “weak” form of judicial review, in Mark Tushnet’s phrase, to create dialogue with the political organs of government and catalyze action with respect to structural issues involving environmental pollution and the health system, respectively. As Tushnet asserts, this iterative process, “places into question the assumption that judicial review must involve coercive orders,” and can be used effectively to enforce social and economic rights through courts in a way that is still democratically legitimate.
On the other hand, as Roberto Gargarella aptly notes, the “grafting” of social rights into constitutions in Latin America, which, among other things, have historically favored a very strong Executive power, has produced complicated results, and health is no exception. Equally importantly, just as health and other social rights were being formulated in these constitutions, state capacity to deliver on legal promises was constrained due to the increasing neoliberalism in precisely those areas of law structuring economic and social life, including health systems and the social determinants of health. For example, in Argentina, Laura Pautassi and Gustavo Gamallo note that in the 1990s, just as social rights were being incorporated into the amended Argentine Constitution of 1994, the Keynesian state apparatus was being dismantled.
Chile was an early adopter of structural adjustment under the Pinochet dictatorship, and more than virtually any other country in the region, has eagerly instituted neoliberal reforms over the last thirty years that have produced savage inequalities in social determinants of health and beyond. Indeed, before the pandemic, months of mass protests over the blatant unfairness of the structure of the economy and the need for a new social contract had wracked the country.
In short, in a new Chilean Constitution, it will be important not only to consider carefully the framing of a right to health, including with respect to sexual and reproductive health. Experience from the region suggests it is equally important to try to anticipate how health-related rights may function in context. Significant attention should be paid to the alignment of norms with the institutional architecture and regulation of the health system specifically, as well as the conditions necessary to establish a democratic political economy more broadly.