Example 1: Litigating for Universal Access to Medicines under the Right to Health
Project Type: Litigation
The Treatment Action Campaign (TAC) is a 16,000-member strong civil society organization founded on December 10, 1998 in Cape Town, South Africa. TAC is committed to increasing access to treatment, care and support programs for people living with HIV and also works to spread information and strategies for reduces the transmission of HIV. In 2004, TAC won the Nobel Peace Prize for their efforts.
The AIDS Law Project (ALP), founded in 2007 by dedicated public interest lawyers, is a nongovernmental organization seeking justice and equal treatment for those living with HIV. The AIDS Law Project provides a range of programs and services related to legal services, human rights and health; policy advocacy and communication; and capacity strengthening.
Treatment to reduce the likelihood of mother-to-child transmission of HIV was unavailable to the vast majority of women who needed it in South Africa. In 2001, it was estimated that approximately 70,000 children would become infected with HIV through mother-to-child transmission. Although treatment with azidothymidine (AZT) or Nevirapine can significantly reduce the risk of HIV transmission from mother to child, in 2001 the South African government was restricting this treatment to two pilot sites in each province.
In 2001, Treatment Action Campaign (TAC) and the AIDS Law Project (ALP) brought a suit in the High Court in Pretoria to secure access to medication for pregnant women to reduce mother-to-child transmission of HIV. The high court found for TAC and held that the South African Constitution required the government to make Nevirapine available to HIV-positive pregnant women who give birth in public health facilities; the women’s babies were also to receive the medication. The Court also held that the Constitution required the Government to formulate and implement a national health program to reduce the transmission of HIV from mother to child. The Government appealed the decision of the high court to the Constitutional Court.
Arguments and Holdings
TAC challenged the Government based on section 27 of the South African Bill of Rights, which protects “the right to have access to health care services.” TAC claimed that the Government could not refuse to make Nevirapine, a registered drug, available to pregnant women with HIV who give birth in a public hospital or clinic. Moreover, TAC claimed that the government had a constitutional duty to create and implement a national program to prevent mother-to-child transmission of HIV.
The Constitutional Court set aside the orders of the high court and ordered the government to remove restrictions on Nevirapine to permit its use in public health facilities. The Court also held that counsellors should be provided at public hospitals and clinics for training and use of Nevirapine, if necessary. Finally, the Court held that the government should take reasonable measures to extend the testing and counselling facilities at hospitals and clinics throughout the public sector.
Violations of the South African Bill of Rights
- Section 27(1): Everyone has the right to have access to (a) health care services, including reproductive health care.
- Section 27(2): The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.
- Section 28(1): Every child has the right . . . (c) to basic nutrition, shelter, basic health care services and social services.
Commentary and Analysis
In addition to a strong litigation strategy, there were several other factors that contributed to the success of the litigation. These included:
- A broad social movement accompanying the litigation;
- Charismatic and committed leadership on the part of people living with HIV;
- Alliances with treatment activists around the world;
- The existence of a constitutional democracy with independent courts and a constitution protecting health rights; and
- A legacy of public interest litigation dating back to the post-apartheid era.
This victory was a significant achievement for activists advancing social and economic rights. Traditionally, claims based on the right to health have not been successful in litigation and so this case marked a new era in health and human rights litigation. Health rights activists are now strategically using constitutional provisions to secure health right victories to instigate legal and policy changes.
There are several wonderful resources to aide health right activists to understand the advances in right to health litigation and to help develop litigation strategies:
- Yamin AEY and Gloppen S, eds., Litigating Health Rights: Can Courts Bring More Justice to Health? (2011)
- Meier BM and Yamin AEY, Right to Health Litigation and HIV/AIDS Policy, 39 Journal of Law, Medicine & Ethics (Spring 2011).
- Gloppen S, Litigation as a Strategy to Hold Governments Accountable for Implementing the Right to Health, 10 Health and Human Rights: An International Journal, no. 2, 2008. www.hhrjournal.org/index.php/hhr/article/viewFile/79/145.