This post is part of a symposium on Amy Kapczynski’s essay “The Right to Medicines in an Age of Neoliberalism.” All contributions to the symposium can be found here.

It is refreshing to read a critique of human rights that is neither overly deterministic nor overly grounded in the experience and concerns of the Northwest quadrant of the globe. Amy Kapczynksi’s call for an approach to human rights that attacks the political economy of a problem is an excellent contribution to the current debate about the efficacy and consequences of, among others, a judicialized right to health. It presents a nuanced critique of the “right to medications” litigation trend, as practiced in places like Brazil, but then goes beyond the critique. Its main contribution is to show both the potential and the (incipient) reality of an alternative model of health rights that actually takes on inequities of access by challenging some elements of the political economy of pharmaceutical drug development, production, and distribution. What I like in particular is the attention paid to the “radical potential” that emerges when “we consider aspects of the movement further from its mainstream” (80).

In any event, the problem with the current, presumably mainstream, model of medications litigation, she notes, is that “courts fail to articulate the right to health as having any necessary implications for political economy” (81). “These cases operate against a background of market ordering and private property rights that they typically neither see nor disturb” (81). So long as the right to medicines approach is embedded in an intellectual property rights regime that underinvests in the poor, strains the resources of governments, and redistributes to multinational pharmaceuticals—that is, so long as it merely requires governments to keep paying for whatever patented drugs are available, at standard prices—it is “plausibly regressive” (81).

This seems right, as a standalone proposition. But it should be clear that this critique is limited to the direct effects of a common but not universal model of litigation for access to medications. Other critics—not Kapczyinki, who wants to focus on exactly this point—ignore other kinds of judicialized interventions that seem to challenge the property rights regime itself. I will return to this below. In addition, moreover, most critics ignore or underplay the systemic and indirect effects of individual litigation for access to drugs. In the end, once we grant that it does not capture the sum total of right to health strategies, and if we consider a broader range of effects, we might still find that even this limited approach is one of several important tools to improve public (and private) health systems.

Much of the individual right to medicines litigation that is critiqued for being regressive seeks to generate some degree of oversight and accountability for the private and public actors who decide whether to dispense, deny, or delay medications within the public or private health system. In both Brazil and Colombia, where this model is widespread, a significant percentage of the court orders require someone to dispense a medication that the patient needs and the system is required to provide. Many of the demands target inefficiency, undue delay, distribution problems, discrimination, and outright malice. It is no accident that in many countries the first wave of health rights litigation targeted the denial of medical care to HIV-positive people. The critiques, by and large, do not discuss the possible salutary effects on bureaucratic behavior of having at least some accountability for the individual decisions made by individual officials. Similarly, the critical pieces rarely highlight the extent to which individual court decisions, biased as they may be by inequalities of access to courts, are then socialized through bureaucratic decision-making.

In truth, we still don’t know enough about the systemic effects of individual rights-based litigation. The counterfactual against which we would measure the effects of a judicialized right to health, in any of its versions, is rarely made explicit or explored systematically. The research that might answer the central questions with any degree of certainty is daunting. It would likely require something like Charles Epp’s study of the transformative effect of “legalized accountability” on bureaucratic behavior,[1] or like the many studies of the effect of malpractice litigation on access to and quality of health care in the United States. In fact, it is entirely possible that introducing courts into the equation has as many pernicious as beneficial systemic and spillover effects, but critiquing the aggregate direct effects of individual litigation without taking into account the systemic effects seems to miss a large, maybe the largest, part of the story.

Thus, “plausibly regressive,” as Kapczynski puts it, strikes about the right tone, as a cautionary note that still requires further empirical research in spite of the rivers of ink already spilled on the question. This is especially true, if the recommendation that emerges is that we should abandon a strategy that has unquestionably made (some) medications accessible for (some) people who need them.

In any event, after the critique Kapczynski pivots to a more hopeful stance, and the main point of the article: “An anti-neoliberal human right to medicines is possible…and courts could play a role in it” (81). She goes on to discuss a series of cases that go well beyond the standard image of individual demands for individual medications. In these cases the litigants—and the judicial response—target the political economic system of medications provision itself. The cases she discusses are, indeed, heartening reminders that both courts and activists, often far from the “mainstream,” are capable of more structural thinking than they are often given credit for. Kapczynski identifies and discusses a repertoire of action that could serve as a playbook for right-to-health activists seeking a broader transformation of health care provision.

Kapczynski’s analysis of these approaches de-essentializes “human rights” to make it clear that the terrain of human rights is as much a site of struggle as any other legal terrain, neither inherently “neoliberal” nor inherently redistributive and egalitarian. This seems right also, and it is not clear that the more egalitarian strand has an advantage in the struggle. Although traditionally it has been the more progressive groups who sought to use the language and tools of human rights to advance their cause, this is changing. The emergence of a conservative rights-based movement—not only in regard to health rights, by the way—seems like a recent but growing development. Cases like Chaoulli v. Quebec or the right to (intellectual) property cases Kapczynski discusses, which are both structural and likely regressive, seem more the exception than the rule, at least for now. One thing progressives cannot do, it seems to me, is abandon the terrain to the opposition, “for there the battle can be lost, if never won,” as Kapczynski says (95).

I heartily endorse the call for such an approach, even though I believe it will not be easy to enlist courts in this more revolutionary project. The difficulty the Brazilian court (along with the Costa Rican one, the Colombian lower courts and others) has had in establishing and sticking to a less regressive model, suggests that courts are less comfortable thinking and struggling with the political economy of public health than with an individual claim for a needed medication. The legal strategy would, at minimum, have to be embedded in a broader educational project aimed at activists and judges around the world. Moreover, these interventions have often triggered a backlash from politicians that only highlights the need to pair a broad political strategy to whatever legal strategy is being deployed. Still, this structural deployment of human rights claims seems plausible.

I suppose it goes well beyond the scope of the article, but what remains to be specified is exactly how the human rights movement—or any other—might actually succeed in upending the system. Kapczynski is right that “a revised human rights would not ignore courts…but must also be attentive to the need to build a broader politics, and structures of political accountability, that are needed to achieve a more ambitious vision of justice at a global scale” (95). As the articulating principle for a global set of actors and institutions, and as a normative language, “human rights” seems like a likely ally in what is, of course, an uphill battle. The political economy described in the essay, one that “structurally undermines equity” by directing massive profits to the drug industry “without generating significant countervailing innovation to meet the needs of the global poor” (81), did not arise out of thin air. It is supported by a global political-economic system that protects powerful multinationals and even more powerful countries.

We have heard calls before for a multi-pronged approach that does not rely solely on litigation, that includes political as well as legal mobilizing, parties and legislatures as much as courts, bureaucrats in addition to lawyers. But Kapczynski goes beyond this in calling for a change in the very nature of the claims. Courts and groups deploying the language of human rights have, as described in the essay, tinkered around the edges and even advanced some fairly radical challenges to the market paradigm in health rights litigation. Is this enough? Is it possible to overcome these powerful interests, to fundamentally transform the political economy of medications? And would this be enough to even approximate something like health equality without also transforming the other subjects of social and economic rights, like food, housing, education, even work? A comprehensive political-economic human rights approach would take aim at the current commodification of all the basic necessities for sustaining life and a dignified existence. And that seems like a tall order for a movement; maybe the human rights movement needs to think about creating political parties.

As mentioned, I am heartened by the description of the structural cases and endorse the call to do more of the same, but it seems to me there is a further challenge for human rights advocates that is not discussed here, that goes beyond even disrupting the commodification of health. By and large, our current approach to providing medications and health services relies on “the market” to make the most difficult choices. “The market” determines which cures will be researched, which drugs will be produced and sold. It determines the prices for medications and thus how much will be available in resource-constrained public health systems. We naturalize and rely on “the market” to legitimize and invisibilize a global rationing system that allocates less health to the poor. This seems inconsistent with a commonsense understanding of what a human rights approach to health would require. A political economic human rights approach, says Kapczynski, would “insist upon a public and political priority for equity…in accordance with health need.” This, of course, would require human rights advocates to engage seriously with the politics of decision making around access to health care.

Of all the failings of the current efforts to judicially enforce the right to health, perhaps the most serious is the failure to grapple with exactly this question. In a world of limited resources, a serious human rights approach will have to deal with scarcity and rationing, with priorities and queues. It is possible that dismantling the current political economy of health will alleviate the scarcity, but it seems unlikely to eliminate it altogether. Judges, and many human rights advocates, have for the most part been conspicuously unwilling—perhaps because they feel unprepared—to take seriously the very real question of how to allocate limited health care resources. A responsible human rights approach, it seems to me, would help us think about these distributional issues with due regard for human dignity, rather than leave it to the market and pretend it isn’t happening.

Unfortunately, the political economy that is the source of Kapczynksi’s—and my—dissatisfaction with the current global distribution of health care is supported by many powerful interests and is not limited to the health care arena. A comprehensive political economy approach to human rights that goes beyond the provision of medications, will require political energy on a global scale. But by making the system itself the subject of human rights claims, the article begins the task of developing a set of normative claims that could motivate that energy. A global political movement articulating its demands in the language of human rights, and targeting the maldistribution of health care at its source, could be exactly what we need. The kinds of human rights claims described in Kapczynski’s piece begin to outline a path toward such a movement.

[1] Charles Epp, Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State (Chicago: University of Chicago Press, 2009).