Understanding the Global Regulatory Process
Research Handbooks in Comparative Law series
Edited by Francesca Bignami and David Zaring
Chapter 12: Structural reform litigation, regulation and the right to health in Colombia
Since it was created in 1991, the Colombian Constitutional Court has emerged as a key player in the domestic regulatory process. In policy areas as diverse as presidential powers to declare “states of emergency,” rights of same-sex couplesand tax policy, the Court has operated both as a negative regulator—that is, striking down unconstitutional statutes and regulations—and, somewhat more unusually from a comparative perspective, as a positive regulator, setting the agenda for legislative and regulatory reform. This trend has been especially apparent in the health care sector where the Court, based on the constitutional right to health, has become a major player in redesigning the Colombian health care system. In the early 1990s, a state reform of the health care system led both to the privatization of service delivery and to the creation of a universal system in which all citizens were entitled to health care through a public–private insurance scheme. This scheme was supposed to be heavily regulated by the government and by independent, technical agencies. However, various deficiencies in the reform’s implementation process due to low regulatory capacity led individuals to turn—massively—to lower courts and the Constitutional Court for the treatments and medications supposedly covered by the scheme but which had been denied by private insurance companies. As right-to-health litigation escalated in Colombia—making it the most litigious country in Latin America—the Court’s case law grew and culminated in a 2008 groundbreaking opinion on the right-to-health.
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