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Taking ‘Health’ as a Socio-Economic Right Seriously: Is the South African Constitutional Dialogue a Remedy for the American Healthcare System?

Document Cited authorities 8 Cited in Related
Vincent
DOI10.3366/ajicl.2013.0057
AuthorSabrina Germain
Published date01 June 2013
Pages145-171
Date01 June 2013
INTRODUCTION

The year 1996 marked the beginning of a new era for South Africa. After a long struggle to free itself from the apartheid regime, it had successfully drafted ‘the most admirable constitution in the history of the world’.1

C. R. Sunstein, Designing Democracy: What Constitutions Do, Oxford University Press (2001).

Nonetheless, everything still had to be done to reconcile the social and economic fracture that was tearing apart the country. This document had to provide continual reinvention to make sense of a changing world and the new South Africa.2

K. E. Klare, ‘Legal Culture and Transformative Constitutionalism’, 14 South African Journal on Human Rights (1998): 146–55, at 155.

 The answers provided by the Constitution had to be more than ‘admirable’, they had to be ‘transformative’. Indeed, unlike most liberal constitutions, the primary concern was not to restrain State power, but to accelerate fundamental changes in a legacy of injustice resulting from over three centuries of colonial and apartheid rule.3

S. Liebenberg, ‘Protecting Economic, Social & Cultural Rights under Bill of Rights: The South African Experience’, 16(3) Human Rights Defender (2007): 2–6, at 2.

It soon became obvious to the drafters that without access to basic levels of social and economic services, no effective civil or political changes could take place in the deeply divided country. Hence, the final document incorporates a detailed list of socio-economic rights tailored to the peculiar needs and context of South Africa.4

Ibid., at 2.

Nonetheless, concerns were then raised with regard to a blurry separation of powers that would stem from the interpretation of these rights.5

S. Seedorf and S. Sibanda, ‘Separation of Powers’, in S. Woolman and M. Bishop (eds), Constitutional Law of South Africa Vol. 2, Juta (2002), p. 12.

The nuance these rights require for their enforcement portrays the flexibility that is expected on the part of the judiciary, the executive and the legislative branch when it comes to fulfilling their respective responsibilities. This approach results in the overlapping of spheres of authority.6

Ibid.

 A fluid, dialogic model of separation of powers is to be preferred for the promotion of a transformative jurisprudence on socio-economic rights. Certainly, the questions of allocation that socio-economic rights litigation triggers call for a more cooperative and flexible relationship between the branches.7

S. Ngcobo, ‘South Africa's Transformative Constitution Towards an Appropriate Doctrine of Separation of Powers’, 2 Stellenbosch Law Review (2011): 37–49, at 41.

Today, South Africa continues fighting its demons with the help and trust it has put in its institutions and the pre-eminent role it has given to its Constitutional Court. Even if sometimes subject to criticism, the contextualising method practised by the Court remains a progressive way of enforcing individual and collective rights.

Interestingly enough, this model, although saluted by many democracies, does not trigger a renewal in constitutional methodologies. In fact, the United States Supreme Court has not only been reluctant to recognise or incorporate socio-economic rights in its Constitution and legislation, it also remains firm in its appreciation of a ‘pure’ form of separation of powers showing no real sensitivity to the American social or historical context when ruling on resource allocation.8

M. S. Kende, ‘The South African Constitutional Court's Embrace of Socio-Economic Rights: A Comparative Perspective’, 6 Chapman Law Review (2003): 137–60.

The United States Constitution as the oldest written nation-governing charter in the world9

Ibid., at 160.

is determined to stand firm on its ground. The strict balance of power that characterises the American system makes it averse to the concept of socio-economic rights, and unwelcoming to any flexibility. Unfortunately, this static conception of the separation of powers presents certain limitations and fails to account for the shifting nature of society.10

S. Liebenberg, Socio-economic Rights Adjudication under a Transformative Constitution, Juta (2010).

Taking a closer look at urgent issues affecting America, one cannot help but wonder why the Supreme Court has not yet learned some of the lessons from its South African counterpart when it comes to the allocation of its healthcare resources. The debate surrounding the Patient Protection and Affordable Care Act (ACA)11

H. R. 3590, 111th Cong. (2009–2010), Public Law 111–148.

has certainly brought up issues of constitutionality,12

Congress's capacity to impose the purchase of insurance health insurance on all Americans has been questioned. The answer lies within the Commerce Clause that grants Congress the power ‘to regulate commerce … among the several states’. The Constitution of the United States, Professional Legal Research, Westlaw (2007), article I, section 8(3).

 and more particularly the central question of Congress's capacity to impose the purchase of health insurance on all Americans. It is as if the insurance industry crisis and the uninsurability of millions of Americans were slightly overlooked and clouded by constitutional questions. Unfortunately, allocation issues were left in the background, the Court preferring to adopt a deeply federalist approach in its resolution of the case

The path of dependency along which America has been evolving for the past century now translates into actual scarcity issues and an ill-suited insurance system. These important shortcomings are surely a result of a profound miscomprehension on the part of the government, the legislature but also the judiciary.

Using a comparative functionalist approach, this article aims at presenting the differences in the role played by the Supreme and Constitutional Court when it comes to the adjudication of the right to health, and more broadly socio-economic rights. The constitutional implications entailed in the allocation of healthcare resources will also be developed in both contexts. First, the originality of the South African model of socio-economic right adjudication will be analysed, focusing on four landmark cases that illustrate the ‘distinctive’ nature of the South African Constitution and the Court's evolving standard of review. Second, the relationship between the different branches of government and the dialogue they maintain in order to enforce socio-economic rights will be fleshed out, giving particular attention to the Court's contextualising efforts. Contrastingly, the American model of ‘strict’ separation of powers and its implications for the distribution of health resources will be presented. Finally, arguments will be made in favour of a more contextualised resolution of allocation cases by the American Supreme Court, and a more robust approach in the implementation of remedial measures by the South African Constitutional Court.

 ADJUDICATION OF SOCIO-ECONOMIC RIGHTS AND THE IMPORTANCE OF CONTEXTUALISATION The ‘holistic’ list of socio-economic rights

The shift from the parliamentary sovereignty regime of the apartheid era to the system of constitutional democracy with an entrenched and justiciable Bill of Rights is by far the most outstanding structural and normative change South Africa has undergone.13

Liebenberg, supra note 10.

The Bill of Rights created legal foundations for the establishment of a true democracy for South Africa, helping to build the new ‘rainbow nation’.14

Term coined by Archbishop Desmond Tutu; the phrase was elaborated upon by President Nelson Mandela: ‘Each of us is as intimately attached to the soil of this beautiful country as are the famous jacaranda trees of Pretoria and the mimosa trees of the bushveld – a rainbow nation at peace with itself and the world.’

This resulted in sections 26(1) and 27(1) of the Constitution granting everyone with the right to access: ‘adequate housing; health care services, including reproductive health care; sufficient food and water; and social security, including, if they are unable to support themselves and their dependants, appropriate social assistance’.15

South Africa Constitution, Ch. II, sections 26(1) and 27(1), in Liebenberg, supra note 10.

Duties were also imposed on the State to ‘take reasonable legislative and other measures, within its available resources, to achieve progressive realisation of each of these rights’.16

Ibid., Ch. II, section 27(2).

During the drafting stages extensive debates with regard to the inclusion of socio-economic rights animated the authors. Opponents to their inclusion argued that the judicial enforcement of these rights would result in a breach of the separation of powers leading to judicial usurpation of governmental powers over budgetary matters and social policy. The lack of institutional legitimacy, or required training and skills of the judiciary to make such decisions, was also heavily highlighted.17

Liebenberg, supra note 3.

Some even argued that the inclusion of these rights would raise unrealistic expectations with regard to their enforcement.18

M. Pieterse, A Benefit-focused Analysis of Constitutional Health Rights, PhD Dissertation, University of the Witwatersrand (2005), available at http://wiredspace.wits.ac.za/handle/10539/1572 (accessed 5 March 2013).

Nonetheless, it was obvious that without access to basic levels of social and economic services and resources, no effective civil or political changes could take place in the deeply divided country.19

Ibid.

Therefore, the final document had to incorporate the idea of separation of powers in a manner that could meet the peculiar needs of the South African context. It was also contended that elevating these second-generation rights to the rank of immutable constitutional values would leave intact the legitimacy of the Bill of Rights, and help to safeguard the institutional legitimacy of the judiciary, without stirring significant separation of powers and...

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