Evolving the Right to Health: Rethinking the Normative Response to Problems of Judicialization

Judicial readings of the right to health—and related rights—frequently possess something of an “all or nothing” quality, exhibiting either straightforward deference to allocative choices or conceptualizing the right as absolute, with consequent disruption to health systems, as witnessed in Latin America. This article seeks to identify pathways through which a normatively intermediate approach might be developed that would accord weight to rights claims without overlooking the scarcity of health resources. It is argued that such development is most likely both to accompany and support a role for courts as institutions functioning within a society that is characterized by a deliberative conception of democracy.