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Hastings International and Comparative Law Review

Abstract

Even in a region characterized by a number of countries with robust constitutions and judicial enforcement of social rights, Colombia stands out as a striking example of judicial activism regarding health rights. Nowhere has Colombia's judicialization of social demands been more striking than in the health domain. By 2008, it was clear that recourse to the courts had become an essential "escape valve" in a health system that was incapable of regulating itself; but the routinization of judicial intervention had created additional problems. In July of 2008, the Colombian Constitutional Court (the Court) issued a sweeping decision aimed at improving the equity and oversight of the health system, which resulted in stemming the tide of litigation. In Judgment T-760/08, the Court examined systemic failures in the regulation of the health system, reasserted the justiciability of the right to health, and called for significant restructuring of the health system based on rights principles.

This article first explores factors that led to the extraordinary level of judicial activism in health that Colombia has experienced. Then, the authors examine the evolving nature of the Court's judicial intervention, culminating in T-760/08, and the impact that judicial intervention has had in terms of financial and policy impacts as well as equity. After describing how the Executive has responded to T-760/08 thus far, the authors offer some preliminary reflections on the potential impact of judicial intervention in promoting the right to health in Colombia.

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