In the fifth installment of its Health Justice Speaker Series, the Yale Jackson Institute for Global Affairs hosted João Biehl to discuss “The Judicialization of the Right to Health in Brazil: Enacting Magical Legalism and Prospecting Biopolitical Futurity” on March 1.

Biehl is the Susan Dod Professor of Anthropology and a Faculty Associate of the Woodrow Wilson School of Public and International Affairs at Princeton University, as well as the co-director of Princeton’s Brazil LAB.

In his talk, Biehl discussed the rise of judicialization of the right to health, a phenomenon he described as the increase in the number of citizens who “have been seeking, and sometimes realizing, access to treatment through the courts.” The trend, evident in socioeconomic issues internationally, is especially pronounced around health in Latin America.

“[As a] major player in the political economy of pharmaceuticals in the global South,” with its universal healthcare system, “offered fertile ground for thinking through the unanticipated ways people mobilized for treatment from the government and the market in context of stark inequality,” Biehl said. .

Brazil’s People’s Constitution of 1988 named health as “the right of all persons and the duty of the state.” According to Biehl, the subsequent establishment of a universal healthcare system that guaranteed free healthcare to all citizens, coupled with the state’s successful AIDS treatment policy, gave rise to the judicialization of the right to health.

The practice emerged amid extensive dissatisfaction with Brazil’s overworked healthcare system, with 45% of Brazilians naming health as the country’s principal concern in 2014. Increasing immigration of Venezuela migrants in Brazil and Colombia has only furthered concern over the constitutional right to health. Right-to-health litigation allows for the entrance of diverse voices in public debates concerning different aspects of the right to health.

The structure of Brazil’s universal healthcare system, Biel said, was informed by two “concurrent and paradoxical” trends. On one hand was a movement toward a greater recognition of the government’s role in fulfilling social rights; on the other, a trend toward decentralization and privatization of state functions. Moreover, though the federal government assumed the central role in public healthcare funding, municipal governments were left to develop the structures to meet health needs and deliver care. Thus, though Brazil’s health policy is highly progressive, in practice, public pharmacies are often out of stock of essential medicines, with newer medicines not included in outdated drug formularies.

Some are seizing upon the expanding role of the judiciary to advance women’s reproductive rights within the system. Among them is Paola Bergallo, a professor of law and attorney with the Center for Law and Social Transformation in Buenos Aires and current visiting fellow at Yale. Along with hundreds of thousands of Argentinian women, Bergallo and her team have worked through the judicial system to press for stronger laws concerning domestic violence and, of particular importance, the legalization of abortion. Bergallo describes her approach as “magical legalism:” feminist legal activism developing in an imperfect form of politics.  Magical legalism can be understood as akin to magical realism; that is, Latin American narrative style embodied by Gabriel García Marquez’s “100 Years of Solitude,” characterized by “the matter-in-fact inclusion of fantastic elements into seemingly realistic fiction.” According to Biehl, Bergallo’s magical legalism creates possibilities for an equitable political future, the advancement of which is achievable through legal means in countries transitioning toward democratic regimes.

Biehl described Brazil’s progressive AIDS policy as particularly consequential in informing the development of right-to-health. AIDS activists successfully equated Brazil’s constitutional right to health with access to pharmaceuticals, which consequently spread across a spectrum of other diseases. Today, Brazil’s constitutional right-to-health is understood as individual access to pharmaceuticals, in contrast to prevention and primary care. This shift means that public health in Brazil has become an increasingly privatized issue.

Biehl drew on his own experiences doing research in Brazil’s southern state of Rio Grande do Sul, which saw a sharp increase in right-to-health related lawsuits between 2002 and 2009— from 1,000 new cases in 2002 to over 17,000 new cases in 2009. One woman, who lives with her taxi-driver husband in a shantytown in Rio Grande do Sul’s capital Porto Alegre, found out she was HIV-positive in 2002 and was able to access treatment for free at her local health post. In 2009, after experiencing other health issues, a doctor at the local health post prescribed her medication for pulmonary hypertension, which was not offered through the public healthcare system. Following her doctor’s advice, she filed a lawsuit through the public defender’s office. Similarly, one man— a retired bus driver who’d begun working at 8 years old— was diagnosed with hereditary cerebral ataxia in 2008. His medicine was unavailable through the public healthcare system, and at $200 a month, was driving him into debt. Like many others,he turned to the judicial system. A district judge then issued a court injunction on his behalf, securing him medicine for several months. When the delivery expired, he filed a new claim, ensuring three additional months of treatment.

Stories like these illuminate the roles of different institutions in dealing with public health issues. The judiciary acted as a pharmacy, the public defender as a physician, the physician as an activist, the patients’ association as legal counsel, the patient-citizen a consumer, and cost-cutting public officers as leaders of anti-judicialization campaigns.

Moreover, Biehl’s research offered empirical counter-evidence for widespread assumptions about right-to-health litigation, at least in Rio Grande do Sul. The vast majority of the litigant population sampled in the study lived outside the capital. Over half were female, and many were older. Biehl’s research disputed the notion that right-to-health litigation is a practice of the financially-well-off; in fact, close to 60% of plaintiffs were represented by the public defender’s office, which provides free legal assistance exclusively to low-income individuals. Most plaintiffs requested medicines costing less than $250 a month, and 85% of lawsuits included a report confirming the need of treatment, the vast majority of which were written by doctors within the public healthcare system. In nearly all the lawsuits, judges granted an almost immediate injunction, writing that meeting individuals’ need for requested drugs was in line with Brazil’s constitutional right to health. One judge described himself as doing “social justice one-by-one.”

Judicialization is thus a “significant mechanism of both accountability and responsiveness,” offering Brazilians a pathway for obtaining treatment in a public healthcare system with significant gaps. Brazil’s failure to wholly implement a robust system to fully ensure Brazilians’ human and constitutional right to health make the law the practical tool for litigants seeking inclusion within the public healthcare system, with which they may ensure that right for themselves.

In the past decades, HIV cases have increased exponentially in Hong Kong, with the number of individuals diagnosed annually doubling between 2006 to 2017. [iii] In line with HIV cases, the annual government expenditure on HIV prevention policies has also achieved exponential growth; the projected costs in 2020 alone will reach 400 million HKD (approximately 51 million USD).[iv]

In Hong Kong, 60.5 percent of HIV cases are attributed to men who have sex with men (MSM). [v] In HIV in Hong Kong: Living on the Edge, Dr Tim Brown, the Director of UNAIDS Collaborating Center at the East-West Center, frames the HIV epidemic in Hong Kong as an MSM epidemic. [vi] Andrew Chidgey, the Chief Executive of AIDS Concern Hong Kong, argues that one of the most prominent causes of the rapid growth of HIV infection in Hong Kong is an entrenched cultural taboo among Hong Kong Chinese families, meaning that individuals are unwilling to disclose their identity as MSM with their HIV-positive status, and they are consequently unlikely to receive prompt or effective medical and social support. [vii]

Ezer Kang and Bruce Rapkin argue that Chinese populations adopt uniquely critical cultural proscriptions regarding the link between homosexuality and HIV, because the younger generation is expected to fulfill their filial responsibilities by passing on the family lineage, something that HIV-positive men are often believed to be prevented from doing.[viii] Globally, former United Nations Secretary Ban-Ki moon commented that stigma is one of the biggest hurdles for HIV responses which included practicing safe sex and undertaking regular HIV testing. [ix] [x] Richard G. Parker and Peter Aggleton, and Erin McCarthy (2016: 222) adopt a sociological perspective when examining stigmatization, arguing that HIV-positive gay people are often socially marginalised and devalued.[xi] [xii] John de Wit et al. and Peter Keogh et al. argue the HIV-positive gay individuals are concerned that disclosure of their HIV-positive and homosexual status would result in greater stigma.[xiii] Thus, HIV-positive gay individuals might be reluctant, whether partially or wholly, to disclose their sexual and health status to any parties. The more they conceal their HIV-positive and homosexual status, however, the more likely they would accumulate perceived stigma. [xiv] [xv]

Jenny Liu and Kyung-Hee Choi argue stigma could result in psychological and emotional struggles with shame, fear, and even depression, and the presence of such symptoms could discourage individuals from practicing safe-sex precautions.[xvi] In contrast, a study by Choi et al. found that the more positive the self-image gay people have, the more likely Asian American men were to engage in HIV-preventive sexual behaviours, including using condoms during anal sex and regularly seeking HIV testing.[xvii] Similar research conclusions are drawn by Hong-jie Liu et al., Chi-yan Wong and Catherine So-kum Tang in the mainland Chinese and Hong Kong contexts.[xviii] [xix] However, for those individuals who have a desire to protect themselves from sexual and health stigmatization would in usual withhold or delay disclosure of HIV positive and homosexual status within family and social network. Their negative self-image, therefore, remains deadlocked.[xx]

From a domestic level, while homosexuality was decriminalised in 1991 as part of the Crimes (Amendment) Bill, Hong Kong lacks comprehensive legislation that prohibits discrimination on the grounds of sexuality and being MSM.[xxi] [xxii] From an international level, the United Nations Convention on the Rights of Persons with Disabilities mandates that ratifying countries eradicate disability-based discrimination. However, the convention does not explicitly include HIV-infection within its definition of “disability.” [xxiii] The deficient legal protection for Hong Kong gay individuals, especially those HIV-positive, facilitates sexual and health stigmatization, in which these insecure cohorts would rather remain “in the closet” than publicly seek medical and social assistance. While Article 25 of the Basic Law states all Hong Kong residents are equal before the law, HIV-positive gay individuals are often invisible from the ill-defined “equality.”[xxiv] Judicial review should be underwent as soon as possible to help broaden the legal protection for sexual and health rights, and combat discrimination on the grounds of sexual orientation and HIV infection in Hong Kong.

About the Author

Jason Hung is an incoming visiting student researcher at Stanford University and UC Berkeley. He was also a visiting student researcher at UCLA. His research interests include international migration studies, ethnic studies (especially Chinese and Muslim diaspora living in English speaking countries), and women’s studies in China.

Endnotes

[i] Altman, Lawrence. “New Homosexual Disorder Worries Health Officials”. New York Times. Retrieved May 11, 2017. (http://www.nytimes.com/1982/05/11/science/new-homosexual-disorder-worries-health-officials.html?pagewanted=all).

[ii] Dowsett, Gary. “The “Gay Plague” Revisited: AIDS and Its Enduring Moral Panic”. In Gilbert Herdt, Moral Panic, Sex Panic: Fear and the Fight over Sexual Rights, New York and London: New York University Press, 2009, p. 130.

[iii] Evidence to Action. “HIV/AIDS Statistics in Hong Kong 1984-2016”. Centre for Health Protection, Department of Health, Hong Kong, 2017. (http://www.aidsdatahub.org/sites/default/files/publication/HIVAIDS_Statistics_in_Hong_Kong_1984-2016.jpg).

[iv]  Brown, Tim. “HIV in Hong Kong: Living on the Edge: Centre for Health Protection”. Department of Health, Hong Kong, 2016, p. 3 (http://www.info.gov.hk/aids/pdf/g175.pdf).

[v]  Virtual AIDS Office of Hong Kong. “Hong Kong Surveillance Report – 2014”. Department of Health, Hong Kong, 2014. (http://www.info.gov.hk/aids/english/surveillance/sur_report/hiv14.pdf).

[vi] Brown, Tim. “HIV in Hong Kong: Living on the Edge: Centre for Health Protection”. Department of Health, Hong Kong, 2016, p. 9 (http://www.info.gov.hk/aids/pdf/g175.pdf).

[vii] South China Morning Post. “It’s not just a gay problem’: head of Aids Concern Hong Kong says growing number of HIV cases a concern for whole of society”. Accessed June 10, 2017. (http://www.scmp.com/news/hong-kong/education-community/article/2097488/its-not-just-gay-problem-head-aids-concern-hong).

[viii] Kang, Ezer and Bruce Rapkin. “Why Tell? Serostatus Disclosure and HIV Stigma among HIV Seropositive Asians and Pacific Islander Men who have Sex with Men in New York City”. Health Issues Confronting Minority Men Who Have Sex with Men, New York: Springer, 2008, p. 197.

[ix] Ki-moon, Ban (2008) “The stigma factor”. The Washington Times. Retrieved September 6, 2011 (http://www.washingtontimes.com/news/2008/aug/06/the-stigma-factor/).

[x] Wit, John B.F. de et al.. “Strange Bedfellows: HIV-Related Stigma Among Gay Men in Australia”, Stigma. In Pranee Liamputtong, Discrimination and Living with HIV/AIDS, Dordrecht; New York: Springer, 2013, p. 289.

[xi] Parker, Richard and Peter Aggleton. “HIV and AIDS-related stigma and discrimination: A conceptual framework and implications for action”. Social Science & Medicine 57 (1), 2003.

[xii] Wit, John B.F. de et al.. “Strange Bedfellows: HIV-Related Stigma Among Gay Men in Australia”, Stigma. In Pranee Liamputtong, Discrimination and Living with HIV/AIDS, Dordrecht; New York: Springer, 2013, p. 291.

[xiii] Keogh, Peter et al.. Ethnic minority gay men: Redefining community restoring identity. London: Sigma Research, 2004.

[xiv] Meyer, Ilan H.. “Minority stress and mental health in gay men”, Journal of Health and Social Behavior 36 (March), 1995.

[xv] Liu, Jenny X. and Choi, Kyung-Hee. “Emerging Gay Identities in China: The Prevalence and Predictors of Social Discrimination Against Men Who Have Sex with Men”. In Pranee Liamputtong, Stigma, Discrimination and Living with HIV/AIDS. Dordrecht; New York: Springer, 2013, p. 280.

[xvi] Choi, Kyung-Hee et al.. “Risk and protective factors affecting sexual behaviour among young Asian and Pacific Islander men who have sex with men: Implications for HIV prevention”. Journal of Sex Education and Therapy 24 (1–2), 1999, p. 274.

[xvii] Choi, Kyung-Hee et al.. “Risk and protective factors affecting sexual behaviour among young Asian and Pacific Islander men who have sex with men: Implications for HIV prevention”. Journal of Sex Education and Therapy 24 (1–2), pp. 48–55.

[xviii] Liu, Hong-jie et al.. “Stigma, delayed treatment, and spousal notification among male patients with sexually transmitted disease in China”. Sexually Transmitted Diseases 29 (6), 2002.

[xix] Wong, Chi-yan and Catherine So-kum Tang. “Coming out experiences and psychosocial distress of Chinese homosexual men in Hong Kong”. Archives of Sexual Behaviour 33 (2), 2004.

[xx] Kang, Ezer and Rapkin, Bruce. “Why Tell? Serostatus Disclosure and HIV Stigma among HIV Seropositive Asians and Pacific Islander Men who have Sex with Men in New York City”. Health Issues Confronting Minority Men Who Have Sex with Men, New York: Springer, 2008, p. 212.

[xxi] S.A.R. Stonewall. Acceptance Without Exception. Stonewall Equality Ltd, Hong Kong, 2016. (http://www.stonewall.org.uk/sites/default/files/gwb_hong_kong_2016_final.pdf).

[xxii] Cheo, John. “Gay and Lesbian Rights in Confucian Asia: The Cases of Hong Kong, Singapore, and Taiwan”. College Undergraduate Research Electronic Journal. University of Pennsylvania, 2014. (http://repository.upenn.edu/cgi/viewcontent.cgi?article=1204&context=curej)

[xxiii] Elliott, Richard. “HIV, disability and discrimination: making the links in international and domestic human rights law”. Journal of the International AIDS Society 12(1), 2009.

[xxiv] S.A.R. Stonewall. Acceptance Without Exception. Stonewall Equality Ltd, Hong Kong, 2016. (http://www.stonewall.org.uk/sites/default/files/gwb_hong_kong_2016_final.pdf).