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Benjamyn I. Scott and Andrea Trimarchi

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Peter O’Connor

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Edited by Dimitrios Buhalis

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Tej Vir Singh

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Tanja Mihalic

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Chris Cooper

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Eduardo Arenas Catalán

This chapter discusses the problem of adjudicating the right to health. The purpose of this inquiry is to find out how courts have acted in access-to-healthcare cases: the trends in case law that can be identified, and whether these trends can protect the right to health in line with solidarity. Two trends in case law are considered: one that looks at the right to health as an individual legal right; and another that focuses on the right to health in line with solidarity. Thus, the goal of the chapter is to show what a solidarity-focus of the right to health would and would not look like. This analysis shows that in some rare cases, the judiciary has engaged in a solidaristic defence of the right to health; namely, the effort of combining respect for the democratic pedigree of social rights together with the defence of the public nature of the national healthcare system.

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Bill Lee

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Eduardo Arenas Catalán

Despite the authority and widespread recognition enjoyed by the bodies that defend the predominant interpretation of the right to health, this chapter concludes that this perspective has several flaws that require careful assessment. The inability of these authoritative bodies to identify the commercialization of healthcare as the greatest threat to the right to health is a fundamental part of the problem. The main asymmetry between social rights such as the right to health and classical rights does not come from the lack of justiciability of social rights in court, but from the incapacity of human rights law to block the commercialization of healthcare.