Why the ‘Right to Health’ is Much More than a Slogan: A Conversation with Alicia Yamin

Alicia Ely Yamin is a Lecturer on Law and the Senior Fellow on Global Health and Rights at Harvard Law School’s Petrie-Flom Center. Previously, she was appointed to the Independent Accountability Panel for Women’s, Children’s, and Adolescents’ Health in the Sustainable Development Goals by the UN Secretary General. She also served as chief consultant to the Office of the High Commissioner for Human Rights on the UN Human Rights Council’s first guidance for a “human rights-based approach to health.” She provides legal support around the world to address health issues.

Why is it important to take a human rights approach to health?

When we think about health as a human right, it matters because that implies that health is closely associated with dignity, with our life plans—whether it's reproductive health, as we've all had a chance to think about, or health [more broadly]. During COVID, we’ve had a chance to think about the connection between our life plans and our health and our ability to participate in society. It's important to think about health as a right in that way, which makes it very different from something that’s technical [and] only driven by biological or behavioral factors. When you understand [health] is something that's related to dignity, you think about all those sorts of larger structural causes of patterns of ill health and disease.

You've been involved in the implementation of the Colombian Constitutional Court’s 2008 T-760/08. decision. For readers who might not be familiar with this decision, could you first provide some background on the judgment and your role as an Independent Expert?

Colombia has what's called a “managed competition” health care system. It's somewhat similar to the US managed care system. [However], it's much more heavily regulated than the US healthcare system, and there's more of a public role. But, there were some pretty deep structural inequalities built into the [Colombian] healthcare system. There was a two-tiered system between people formally employed and people in the informal sector. There were lots of problems with the insurance companies paying for care—for example, if you need some drug and you need to take it every day, and the prescription expires at the end of the month, then getting the insurance company to pay for the next month. Or, if you had a surgery, the actual procedure of the surgery might be covered, but insurance companies would contest whether the prosthetic you need for a hip replacement or the stent you need for an angioplasty or something like that is included in the insurance coverage. So, there were a lot of regulatory gaps, structural asymmetries in the system, and compliance gaps.

In Colombia, over time, the Court had recognized a right to health, but that led to a lot of individual litigation for these entitlements that were constantly being denied. By a lot, I mean hundreds of thousands of these tutela [a mechanism in the Colombian Constitution for defending rights] claims a year. In 2008, by which time there were over 700,000 of these tutela claims, the Court stepped in with a structural judgment that really restated a lot of what it had already said, and what the legislature had said that it was going to do, but had never gotten around to. The judgment is quite sweeping, but it's also known by different terms. It's a soft judicial review, or it’s experimentalist regulation because it set timelines, and it set some hard standards in the Constitution. But, it threw this back to the executive branch and the legislature to figure out how to reform the health system and said,
“We're going to stay involved. We're going to create this follow-up unit within the Court, and we're going to keep checking back to see if the compliance is going forward.” That's where I come in. I was one of the experts appointed.

Those big structural judgments take a very long time. In this particular case, it led to a statutory reform of the health system in 2015, which enshrined the right to health and a lot of the things that the judgment had talked about. And, it catalyzed a lot more pharmaceutical regulation, in my view. There are still a lot of individual litigations, but they're about somewhat different kinds of things.

Could you delve more into examples of other country-level efforts to implement the right to health? What are the challenges and barriers they face in the implementation process, and how can they be overcome?

I would say the United States is certainly the outlier among high income countries. Almost every other high income country in the world has a right to health—whether it's enshrined in the Constitution is a different [issue]. In the UK, you have the National Health Service. The UK is part of the European Convention on Human Rights and the European Social Charter. So it's more of a question of non-discrimination….I don't want to get overly legal, but there is a right to health. That's a good example because it's not in the constitution, but it's nonetheless something that everybody understands and can claim. And, there is a system that tries to provide health care in an equitable, systematic fashion, which does not exist in the United States, [where] it's largely allocated by the market.

You asked at the very beginning [of the interview], why does it matter that health is a right? Well, if health is a right, it's not just a commodity to be allocated by the market. It's not just a commodity for pharmaceutical companies to decide who gets COVID vaccines. It's not just up to the market to decide who gets life saving care. The state has a role to play in leveling the playing field. Almost every country in Latin America has a right to health.

What have been the problems in implementation? I think the problems in implementation are lack of funding and infrastructure and lack of appropriate regulation, which is certainly the case in Colombia. But it's also the case in Argentina. It's also the case in Mexico. It's also the case in almost every other country I've ever worked in.

In your view, how should global actors respond when there's a lack of capacity within a country to improve health?

Since the late 1970s and early 1980s, we've seen decades of neoliberalism that have privatized a lot of health and education and other services, that have hollowed out government [and] fiscal capacity to pay for those services. Over time, that cumulative effect has really played a huge role and had a huge toll, and we saw that in the COVID pandemic. When COVID struck, a lot of the countries just didn't have enough money to have resilient health systems to pay for people who were out of work or were in quarantine because there weren't social protection systems.

From the human rights community, we need to focus somewhat less on just building up the normative scaffolding of international law and look at how these norms and ideas are really materialized in political economies.

You've worked and published extensively about reproductive health, including testifying to the Argentine Congress about the decriminalization of abortion. Can you speak broadly about your work in this area?

I have worked on maternal and reproductive justice issues for a very long time. I started working on human rights and health rights through maternal mortality and maternal health. That was important because, at the time, first of all, very few people were working on economic and social rights. And, very few people in the “health and human rights movement” were focusing on affirmative entitlements to care. They were focusing on discrimination, especially in the HIV/AIDS context. Later, there was litigation to get affirmative entitlements to antiretroviral medication. I have an MPH as well as a JD, [and] actually a PhD, in law.

It's not always clear what a right to health requires of the government. Morally, we can say health is a right, but legally, what is the causation? In the HIV scenario, it's easy to say, “Well, if the Ministry of Health doesn't give this person certain drugs, they will die.” If [the government] does [provide drugs], they won't die.

But, in the case of maternal mortality, for a long time, people weren't very sure of what was necessary to prevent women from dying in childbirth. They said, “Maybe it's better prenatal care,” or, “Maybe it's making sure that traditional midwives have clean implements.” But, in the mid-1990s, around the same time as effective antiretroviral medications were discovered, a new paradigm came out in maternal health. It said that all pregnant women need access to emergency obstetric care.

Once you know what the thing that will save women's lives is, then you focus on drawing the causal linkages to define obligations of the state. In the case of maternal mortality, unlike just giving a drug for AIDS, it really requires a health system response. You have to prevent unwanted pregnancies. You have to have family planning. You have to have access to certain signal functions of emergency obstetric care, including communications networks and transportation to get women to emergency obstetric care. In the case of abortion, that's one of the leading causes of maternal mortality around the world and is really a legal issue because a woman who's having an abortion requires the same kinds of care as [is necessary] to deal with maternal health generally.

So, I became quite involved in reproductive justice issues. I say “reproductive justice” because it's not just a narrow autonomous choice. I really see [reproductive justice] as the material conditions that enable women and pregnancy-capable people of making decisions about their bodies and their life plans. I have been doing that since, I would say, the early 1990s, working across mostly Latin America, but also with Latinx people in the United States as well. And I've worked in Peru, in Argentina, in Mexico, and in Colombia.

If you don't understand [what the right to health entails], then it just becomes a slogan.

What concrete steps should or could nations take to decriminalize abortion and promote reproductive justice?

That depends on the universe of norms on which they can draw—whether there is a right to health. In Latin America, they’ve used the right to health. They've used gender equality, which is quite different from the way we think about equal protection. It's a broader concept of gender equality. They've emphasized dignity and the full participation of women and pregnancy-capable people in society. I think all of those norms, depending on what norms you can draw on, are important.

But, there are political factors, too. For example, in Argentina, which has an extremely polarized political scenario, abortion was not the divider the way it is in the United States. There were politicians from multiple parties who were willing to cross over and work together over time to get this legislation through. That's really, really important.

And a third leg of how this happens in states is civil society—working with providers slowly and iteratively to change their views of, “I can't do this, because it's criminal” to “Under these circumstances, it's actually not criminalized, so you can [do an abortion] and the woman has a right to claim it, and you can think of yourself as a champion of women's rights.”

If abortion is thought of in terms of reproductive justice and allowing full participation in society—for example, in Argentina, the national campaign included labor movements because it's a labor issue. If women can't control their bodies in their lives and their reproductive decisions, they may not be able to work. Thinking about it in a structure that is broader and more about expanding democracy and gendering democracy has been very critical in a lot of these places.

In many of the places that have recently liberalized abortion, the role of international law has been very important. In international law, we've seen quite a steady trend toward liberalization from all the committee statements and soft law, the adjudication, etcetera. So, that has been very important, too. Again, international law is another source to draw on that we don't really have in the United States.

In the conclusion to your book, Power, Suffering, and the Struggle for Dignity, you write that “applying a human rights framework to health calls on us…to imagine a different world.” Could you elaborate on your vision for a different world? How would a world that universally recognizes and implements a right to health and health justice be different from the world that we see today?

Over the last 40 years or so, we have seen increasing inequalities—such dramatic inequalities—and the pandemic exacerbated this exponentially, where you have millions of people thrust into destitution while you have other billionaires being created—not just millionaires, but billionaires. In a world where everyone enjoys their human rights, that would not happen. You [would not] have an equal, forced, Marxist, Communist “equal outcomes in everything” society.

But, very stark social inequality is not compatible with a world in which everybody can enjoy all of their rights and can actually fully participate and their life plans are taken seriously equally. We live in a world that is very dominated by corporate actors, especially by multinational actors, where there are a small group of people that control the political process in most countries, including the United States. That's not compatible with a world in which everyone enjoys their health rights or their other human rights. We've seen increased closing down of other human rights as well as health.

My work really looks at rights as tools to foster and catalyze democratic political economies, and democratic political economies are, in turn, also necessary for people to really enjoy all their human rights.

Young spoke with Yamin on July 6, 2022. This interview has been lightly edited for length and clarity.