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Putting Health to Rights: A Canadian View on Global Trends in Litigating Health Care Rights
Bryan Thomas & Colleen M Flood

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Abstract

The majority of the world’s constitutions now include mention of a right to health or health care. Will the courts be effective at championing the health rights of vulnerable populations? Courts recognize that health systems embody complex tradeoffs, and have struggled to draw a principled line of deference to government decision-making.

Worldwide, one finds courts drawing this line in various ways, depending, among other things, on their country’s constitutional aspirations, the maturity and internal accountability of its health system, and broader currents of social mobilization. For their part, Canadian courts have been very restrained, conceptualizing health rights largely in negative terms – overturning restrictions on access to abortion, medical marijuana, and so on – while refusing to recognize any positive duty on the part of government to provide particular health services. Could Canadian courts do more, without tumbling into overreach? The paper ends by sketching options for a more robust and progressive approach to adjudicating health rights claims.