Firooz Kabir, BS¹; Zoe Reinecke, BA¹; Aleta Sprague, JD¹,³; Gonzalo Moreno, MA, MBA¹; Erin Bresnahan, MA¹; Jody Heymann, MD, PhD¹,²
Abstract
The COVID-19 pandemic has had grave and widespread consequences for health, due both to the virus itself and the effects on the social determinants of health of measures taken to contain its spread. In some cases, actions designed to mitigate the pandemic—including economic shutdowns and school closures—exacerbated barriers to income, nutrition, and education, with outsized impacts on vulnerable populations. This article examines whether constitutional courts were able to effectively respond to threats to rights in these and other areas as the pandemic began to unfold. Through a survey of constitutional court decisions issued between March and August 2020, this study examines whether and how constitutions can make a difference in addressing social determinants of health—including but not limited to nutrition, healthcare, education, housing, and safety—during the first stages of a global crisis. We find that, even during a public health emergency, constitutional courts can effectively apply rights to strengthen health protections, safety measures, and access to basic needs in diverse settings worldwide. As countries seek to take actions to be better prepared for the next pandemic, this study emphasizes the potential of constitutions and constitutional courts to shape government responses to crises in ways that are compatible with fundamental social, economic, and equal rights.
- WORLD Policy Analysis Center, UCLA Fielding School of Public Health
- UCLA Luskin School of Public Affairs; UCLA Geffen School of Medicine
- Corresponding Author: asprague@ph.ucla.edu.
Introduction
As of December 1, 2021, COVID-19 has infected more than 263 million people and caused over 5.2 million deaths worldwide, making it among the deadliest pandemics in recent history.[1] Alongside the direct consequences for health caused by the spread of a highly infectious virus, the pandemic and efforts to contain it have created and exacerbated grave threats to the social determinants of health, including income, educational opportunities, stable housing, and safe working conditions. In particular, economic lockdowns have led to widespread loss of employment, triggering significant increases in poverty, homelessness, and food insecurity around the world and laying the groundwork for widening inequalities in the decades to come.[2] World Bank estimates projected that the pandemic may drive as many as 150 million people into extreme poverty by the end of 2021,[3] while the U.N. reported that 20 million additional people experienced "crisis” levels of food insecurity in 2020 compared to 2019.[4] Further, while the pandemic has affected people of all backgrounds, marginalized groups have disproportionately borne these impacts, and large-scale job losses and insufficient social protections to replace income exacerbated existing vulnerabilities and left many people around the world struggling to meet basic needs.[5]
The adequacy and equitability of governments’ responses—as well as the potential conflicts between their efforts to contain the pandemic and obligations to uphold other core aspects of health—have increasingly come before constitutional courts, which are uniquely situated to balance competing interests from a rights-based perspective. Alongside substantive guarantees for social and economic rights like health and education, courts have been tasked with evaluating the impacts of government action (or inaction) to address the pandemic’s health and economic consequences on equality, a core constitutional right nearly everywhere. Through an analysis of case law issued in the pandemic’s early stages, this qualitative study seeks to inform the following research question: can constitutional courts be responsive at the onset of a public health emergency like COVID-19 that requires mitigating infectious disease spread while safeguarding the social determinants of health?
Background: COVID-19’s Consequences for the Social Determinants of Health and the Potential of Constitutional Courts to Respond
The social determinants of health—defined by the WHO as “the conditions in which people are born, grow, work, live, and age, and the wider set of forces and systems shaping the conditions of daily life”—profoundly influence health outcomes across countries.[6] Social determinants of health have markedly shaped both exposure to COVID-19 and risks of severe illness, while government responses to the pandemic have in turn affected both disease spread and living and working conditions worldwide. This background section briefly explores how these dynamics played out within the first few months of the pandemic.
Economic Protection
The economic lockdowns and restrictions on movement triggered by COVID-19 had some of the most immediate impacts on the social determinants of health for individuals and households worldwide. One month into the pandemic, the International Labour Organization (ILO) estimated that nearly 1.6 billion informal workers, representing almost half the world's workforce, risked losing their livelihoods due to lockdowns.[7] Similarly, migrant workers in many countries lost jobs at an unprecedented rate, which was compounded by legal and financial barriers to returning to their homes. For example, 45% of migrant workers from Tunisia, 39% of those from Sri Lanka, and up to 25% of those from Nepal became unemployed due to COVID-19, leaving hundreds of thousands stranded due to both income loss and travel restrictions.[8] Alongside the direct impacts on jobs, school and childcare closures further jeopardized employment for workers with caregiving responsibilities.
A key challenge facing all countries that have adopted lockdown measures has been how to offset their economic repercussions for households and entire populations. In the absence of expanded and more inclusive social policies that provide critical resources for the health and wellbeing of vulnerable populations, many basic needs have gone and will continue to go unmet, intensifying economic and social crises emerging within the larger global public health crisis.[9]
Working and Living Conditions
The first months of COVID-19 also underscored the role of employment and living conditions in fundamentally shaping the risk of contracting COVID-19. Workers in frontline jobs—disproportionately women, people of color, and migrants—consistently faced higher risks of exposure due to their substantial interaction with the public; this was exacerbated by insufficient efforts to mitigate risks linked to working and living conditions in many countries. For example, inadequate access to personal protective equipment (PPE), particularly during the early stages of the pandemic when vaccines were wholly unavailable, posed a particularly grave threat to care workers, whose direct interaction with patients puts them at increased risk of both exposure and infection.[10] While PPE has been recognized as an effective preventive measure,[11] global shortages of PPE and limited access by low- and middle-income countries continue to endanger the health and safety of care workers on the pandemic frontlines.[12]
Individuals and families who live in crowded conditions, lack running water, or rely on public transportation have likewise faced heightened risks of infection and higher barriers to isolation after testing positive. For example, one recent study spanning 54 African countries found that over 718 million people lived in households with at least six residents, while 890 million lacked water at home—significantly limiting their ability to take all recommended preventive measures, such as social distancing.[13] Meanwhile, incarcerated populations, including those in migrant detention, face higher risks of infection due to overcrowded facilities that do not allow for sufficient physical distancing, compounding the effects of widespread, pre-pandemic neglect of their health and medical needs. [14]
Access to Healthcare
Finally, access to adequate healthcare during the COVID-19 pandemic has varied within and among countries based on access to resources, information, health coverage, paid sick leave, and transportation.[15] Gaps and inequalities in accessing healthcare and in the ability to isolate when sick had a significant and immediate impact on the pandemic’s spread, further contributing to its disproportionate toll on marginalized communities.[16] Meanwhile, barriers to accessing other routine and preventive health services as COVID-19 was overwhelming health systems—including screening for cancer and heart disease, monitoring of diabetes, and prenatal and postpartum care—worsened health outcomes in other areas, including maternal mortality, stillbirths, and amputations.[17]
Inadequate access to healthcare threatens to both prolong the pandemic and worsen households’ economic outcomes. Financial barriers to accessing testing and treatment, which remain critical components of national pandemic control and mitigation efforts, impose a disproportionate burden upon low-income individuals and families, increasing their risks of falling further into poverty.[18] Fear of financial insecurity may also deter people from seeking necessary medical care, which can further increase spread and lead to preventable deaths from other conditions.[19]
Role of Political Institutions and Rights During a National Health Crisis
The COVID-19 pandemic has underscored that governments’ responses to health crises must prioritize equity. As the pandemic has unfolded, international organizations including the WHO, UNICEF, and the ILO have all urged countries to strengthen social protection measures for the most marginalized and vulnerable groups, citing the grave risks of increased food insecurity, significant income loss, and widening social and economic disparities if governments do not take urgent action.[20]
Governments worldwide have committed to uphold equal rights and to address the fundamental needs of vulnerable groups through a range of binding treaty obligations. The International Covenant on Economic and Social Rights, for instance, ratified by 171 countries as of this writing, explicitly guarantees the rights to safe and healthy working conditions, social security, and education, alongside a right to the “highest attainable standard of health” fulfilled in part through access to medical care and “the prevention, treatment and control of epidemic…diseases.”[21] Moreover, the Siracusa Principles, which outline to what extent governments can restrict fundamental rights during emergencies, make clear that limitations on freedom of movement and other core civil and political rights that affect health must be “strictly necessary,” non-discriminatory, and proportionate to the public health threat.[22]
These obligations are often translated into domestic law through constitutions, which provide the foundational legal principles for national laws and governance and establish a framework for governments’ responsibilities to their citizenry. The fundamental human rights articulated in a country’s constitution—including both guarantees of equal rights and protections of the rights to health, education, and social insurance—embody the scope of protections guaranteed to its people. During national health crises, constitutions can serve as the basis for legal arguments in support of expansive and inclusive governmental policies that protect, strengthen, and affirm fundamental human rights, safeguard against excessive restrictions on rights, and directly affect the social determinants of health.
Constitutional Courts’ Responsiveness to COVID-19
Since the onset of the pandemic, individuals and advocacy groups have turned to the courts to affirm their governments’ constitutional responsibilities to uphold the fundamental rights of marginalized and vulnerable populations. Court challenges have questioned both the adequacy of governments’ responses as well as the potential for efforts to contain the spread of the virus to undermine social determinants of health.
Understanding the scope and impacts of the decisions these cases have yielded can provide insights into whether, and how, strong constitutional foundations for the social determinants of heath can translate into concrete and real-time action for marginalized communities amidst public health emergencies—an undertaking of particular importance at a time when the next global pandemic is not a question of “if” but “when.” In the past 20 years, four majority respiratory viruses—SARS, MERS, H1N1, and now COVID-19—have affected billions globally, and climate change and deforestation are increasing the rate at which zoonotic disease spreads to humans. As countries take steps to better prepare for the next pandemic, understanding whether constitutional courts can be responsive to the urgent threats to social and economic rights likely to arise—including by ensuring that government actions are both adequate and equitable—can yield valuable insights. This paper is among the first to examine constitutional rulings affecting the social determinants of health in countries around the world in the first months of the pandemic.
Methods
We reviewed international case law repositories, news publications, and specialized resources to identify constitutional court rulings related to the social determinants of health during the onset of the COVID-19 pandemic. For the purposes of this paper, we define “constitutional court” as any court with the authority to review the constitutionality of a law, policy, or practice. To understand the potential of constitutional courts to respond quickly in an emergency, we limited our searches to cases decided between March and August 2020.
Data Collection
We searched case law repositories, news publications, and specialized resources shared via the social media and web outlets of relevant organizations. Cases were reviewed in English or Spanish, depending on the country of origin and the format of available information. Data collection was global, and cases were selected according to availability and satisfaction of the specified criteria. Constitutions were accessed from official government websites and referenced when stated within the court ruling. When full-text court decisions were not publicly available, we supplemented information about the case with news articles and referenced the constitution where information about the basis of the decision was available.
Cases identified were reviewed based on their satisfaction of the following criteria:
- The case addressed a tension between social protections for vulnerable populations and government measures taken to curtail the effects of COVID-19 on population health.
- The court decided the case explicitly based on its country’s constitution and clearly identified the relevant constitutional provisions.
- The ruling mandated government action to protect health and/or other fundamental constitutional rights.
Approximately 30 court cases decided by August 2020 met the inclusion criteria (see Appendix), which were reviewed in detail and summarized in a table that contained information about the decision date, location, court level, party names, and source URLs.
Cases inputted into the table were then categorized according to two axes of analysis:
- Axis 1: Broad area of social protection
- All cases were grouped into three broad categories depending on their subject matter, including, (1) health, (2) social insurance, or (3) education. Based on the emerging information on country responses, our goal was to understand the impact of widely reported phenomena such as school closures, income replacement for locked down populations, and health protections for marginalized groups such as migrant workers and prisoners.
- Axis 2: Strength of constitutional provision
- Each case was categorized based on the textual strength of the constitutional provision(s) that were used as the basis for the ruling. Cases based on explicit economic and social rights or specific health-related rights, as opposed to cases based on general equality provisions, were most likely to be selected for in-depth review.
Based on these two axes, we identified 12 cases for analysis. We then reviewed cases sequentially to understand constitutional courts’ capacity to be responsive in the midst of a public health emergency. In particular, we analyzed those cases that were: 1) initiated before the pandemic but decided based on the exigent circumstances created by COVID-19; 2) initiated and decided at the very beginning of the pandemic in response to lockdown orders; and 3) initiated and decided in the first six months of the pandemic to address other critical issues such as the availability of PPE, access to medical care and testing, and the government’s duty to protect vulnerable populations. In the next section we share details about these twelve cases as illustrative examples of the timing, breadth of topics, and extent of coverage of the social determinants of health addressed by early-pandemic constitutional case law.
Constitutional Court Rulings Addressing the Intersection of COVID-19 and Social Determinants of Health
Our analysis found that courts in a wide range of countries decided cases with direct implications for social determinants of health, particularly for vulnerable populations, during the first six months of the global COVID-19 pandemic.
Cases Initiated Before the Pandemic and Decided to Address its Urgency
Across countries, the pandemic has underscored how pre-existing inequalities in health and social insurance systems create vulnerabilities that only intensify in the context of a public health emergency. Several cases in our sample, including those outlined below, were initiated before the pandemic but decided within its first few months, as COVID-19 began exacting an outsized toll on the marginalized groups at the center of the litigation.
R (W, A Child By His Litigation Friend J) v The Secretary of State for the Home Department & Anor (U.K.)
Policies that restrict migrants from accessing public assistance and social safety net programs have faced legal challenges amidst the pandemic, though their consequences far predate COVID-19. In the U.K., a case first brought in 2019 by the eight-year old British national son of a migrant worker, which challenged the UK’s “No Recourse to Public Funds'' condition that restricted migrant families from accessing critical benefits, was finally decided in May 2020, with the exigent circumstances created by the pandemic shaping the court’s ruling. The boy’s lawyers argued that the enforcement of this rule deprived vulnerable migrants of essential public support funds and subsequently exposed them to conditions that increased their risk of COVID-19 infection.[23] Furthermore, they asserted that the UK had failed to uphold its duty to protect “the most basic needs of any human being” articulated in its Human Rights Act, which is widely viewed as part of the UK’s unwritten constitution.[24] In May 2020, the High Court ruled in favor of the plaintiff, ordering that the condition be lifted for migrants facing severe social and economic hardships due to a lack of access to funds for public welfare and further characterizing the restriction as unlawful as it violated the UK’s obligation to protect fundamental human rights and prevent inhumane treatment.[25]
Make the Road NY vs. Cuccinelli, 419 F. Supp. 3d 647 (S.D.N.Y. 2019) (United States)
Similar to the U.K, a rule proposed in 2019 by the Trump administration in the U.S., known as “Inadmissibility on Public Charge Grounds,” sought to vastly expand restrictions on citizenship based on immigrants’ economic resources and likelihood of using public benefit programs including Medicaid, which provides free health insurance to low-income households. As advocacy groups noted, the expanded public charge rule—like the more limited version that has been in place for decades—would serve to deter immigrant households from accessing food, housing, and medical supports for which they were eligible. In August 2019, a coalition of civil society organizations filed a complaint arguing that the expanded rule violated the Constitution’s guarantees of equality, since it was “driven by unconstitutional animus against nonwhite immigrants.”[26] The case took on new urgency as the pandemic began, since discouraging immigrant households from seeking care through Medicaid—which was not covered by the original public charge rule--would both worsen their own health outcomes and likely increase COVID-19’s spread. In April 2020, the plaintiffs filed a motion for a preliminary injunction against the rule, which had taken effect in January of that year, noting that the “COVID-19 outbreak and its ramifications on public health and the economy present sudden and stark new circumstances not previously considered by the Court.”[27] In July, a judge granted the injunction, halting the implementation of the public charge rule.[28]
Cases Initiated and Decided to Address Impacts of First-Wave Lockdowns on Social Determinants of Health
The initial lockdowns that were put in place by countries around the world in March and April 2020 led to a wave of litigation challenging the legality of these restrictions, in particular when they only applied to certain populations or were expected to have a disproportionate impact on them. A number of cases in our sample addressed these tensions between efforts to curb the pandemic’s spread and the government’s responsibility to also protect the economic security and full range of health needs of their populations.
Kathumba and others v President of Malawi and others (Malawi)
In Malawi, a human rights group challenged the government’s COVID-19 lockdown in April 2020, arguing that its failure to provide appropriate social protections for those experiencing extreme poverty before imposing the lockdown would cause widespread suffering, including starvation and complete loss of income.[29] As a result, the plaintiffs asserted, the government had violated the Constitution of Malawi’s “implicit” protections for a right to social security. In support of this argument they pointed to the constitution’s “directive principle” outlined in Section 14 that promotes national policy as a means of protecting welfare, as well as the “right to development” found in Sections 29 and 30, which obligates the governments to “take all necessary measures for the realization of the right to development [including] equality of opportunity for all in their access to basic resources, education, health services, food, shelter, employment and infrastructure.”[30] In response, the High Court granted an injunction in April 2020 to temporarily suspend the national lockdown until the government had provided additional measures to help the most vulnerable people meet their basic needs, and then it referred the case to the Constitutional Court (which upheld the ruling in September 2020).[31]
Lejla Dragnić and A.B. vs. Order of the Federal Civil Protection Headquarters (Bosnia and Herzegovina)
In Bosnia and Herzegovina as in some other countries, initial restrictions on movement imposed to curb the pandemic’s spread were based on an individual’s age: in March 2020, the government banned children under 18 and adults over 65 from leaving their homes, with very narrow exceptions. Shortly thereafter, two citizens challenged the law in the Constitutional Court, arguing that it was “not in the interest of public health” since it broadly forbade movement based on age, a discriminatory ground, rather than actual health risks. Further, one of the petitioners, a parent of a young child, argued that the restrictions “directly affect[ed] physical and mental health of children and elderly persons” and prevented him from “providing care and protection for his child.” The petitioners asserted that the ban was a violation of the constitution’s guarantees of equality and freedom of movement. In an April 22 decision, the Court agreed, finding that the rule’s blanket ban on free movement by children and older adults was disproportionate to its aims, particularly since it failed to provide exceptions for seeking medical care or meeting the specific needs of children with disabilities. In particular, the Court urged that any future lockdown orders take into account “the extent of the benefits and damages they may have on the physical and mental development of children.”[32] While not overturning the rule entirely, the Court ordered the government to bring it in line with the constitution within five days.
Equal Education and others v Minister of Basic Education (South Africa)
Like the closure of businesses, school closures around the world jeopardized fundamental rights and basic needs for millions. In South Africa, the pandemic threatened the provision of nine million meals to students in South Africa as the National Schools Nutrition Programme (NSNP) stopped operating when schools closed. The Equal Education Law Center and local school administrations argued that school closures affected constitutionally guaranteed rights to education, nutrition, and access to food, as stated in sections 29(1), 28(1)(c), and 27(1)(b) of South Africa’s constitution.[33] The North Gauteng High Court determined that the constitutional right to education is interdependent with basic nutrition and thus for both rights to be guaranteed the NSNP must resume even if students are not physically attending school. The Court ordered the Minister of Basic Education to provide a plan for the reinstatement of the NSNP within ten days of the judgment, and to provide the Court with an update of the program every fifteen days.
Writ Petition of Som Prasad Luitel (People Forum for Human Rights) (Nepal)
Migrant workers, who comprise 10% of Nepali citizens, faced unique threats when lockdown orders jeopardized not only their livelihoods but also their ability to return home. Though the Nepali government urged migrant workers to return before the borders closed on March 22—since migrant workers were being denied medical attention, losing jobs, and experiencing financial instability in the countries where they were working—many did not have the resources to do so. In response, advocate Som Prasad Luitel filed a public interest litigation petition seeking relief for stranded migrant workers. Citing Articles 18 and 51 of Nepal’s constitution, which guarantee equality and protect Nepali citizens working abroad, the Supreme Court issued an interim order requiring the government to work with foreign embassies to monitor the health status of overseas workers and ensure they could access treatment without discrimination, following the guidelines outlined by the WHO.[34] In so doing, the Court proclaimed: “no matter where Nepalis are it is the duty of a legitimate government to address their health, security and other needs.”[35] The Court also asserted that Nepali migrant workers must be able to safely return to Nepal, citing the Foreign Employment Act to urge the government to use public funds to pay for migrants’ travel and provide relief to their families.[36] In June, the Supreme Court affirmed and strengthened this ruling, ordering the government to “rescue the stranded migrant workers and send them to their respective destinations when they arrive in Nepal.”[37]
K. Ramakrishna v Union of India and others (India)
Internal migrant workers have likewise faced threats to health and wellbeing due to job loss and restrictions on movement related to lockdowns. In K. Ramakrishna v Union of India, a public interest litigation lawsuit, the petitioner argued that not allowing migrant workers to return home to their villages after providing a negative COVID-19 test violated their constitutional rights to equality, movement, and personal liberty articulated in articles 14, 19, and 21.[38] In response, the High Court of Andhra Pradesh issued a series of guidelines to aid in protecting the basic rights of Indian migrant workers amidst the pandemic. The Court also issued orders for state governments to arrange bus travel within forty-eight hours and train travel within ninety-six hours for migrant workers seeking to return home after completing necessary coronavirus testing, and to create outposts on national highways where migrants could access drinking water, food, and medical care.[39] The Court required immediate implementation of these orders by government officials to protect the basic right to health among migrant workers.
Cases Initiated and Decided in the First Months of the Pandemic to Prevent Spread Among Vulnerable Groups
Adequate access to testing, PPE, medical care, and the ability to socially distance and isolate if infected or exposed were identified as critical aspects of COVID-19 containment long before a vaccine became available—and even now, as vaccine inequity leaves large swaths of the global population vulnerable to serious illness, these measures remain critical, particularly for groups at greater risk of exposure. Across countries, governments’ responsibility to ensure these basic preventive measures are accessible to all has come before the courts, as reflected in the cases below.
Punya Prasad Khatiwada v Prime Minister (Nepal)
Frontline health workers face an increased risk of exposure to COVID-19, and personal protective equipment can help prevent or slow the virus’ spread. In Dr. Punya Prasad Khatiwada v Prime Minister, the petitioner argued that Article 35 of the Nepalese Constitution, the right to health, requires the government to provide PPE to medical personnel and provide free medical resources, such as masks and hand sanitizer, to those who cannot afford them. The petitioner also drew on Section 3(4)(C) of the Public Health Act, 2018, which reiterates the government’s responsibility to provide medical equipment to those in need. The Supreme Court found in his favor, ruling that freely providing adequate PPE equipment to healthcare workers is required by the constitutional right to “basic health services,” which likewise requires the provision of basic preventive medical supplies to anyone in need.
Lesotho Medical Association and Another v Minister of Health and Others (Lesotho)
Medical professionals’ need for PPE also emerged as a constitutional matter in Lesotho in a June 2020 ruling.[40] Citing unsafe work conditions stemming from inadequate supplies of PPE and a vulnerability to infection that threatened their lives, a group of doctors and nurses urged the High Court to protect their constitutional right to life. The petitioners framed health as a part of the explicit right to life outlined in Article 5 of the Constitution, and also invoked the Constitution’s directive principle on safe working conditions.[41] While the directive principle itself was explicitly non-justiciable, the High Court found that, when applied alongside the right to life, it became enforceable. Consequently, the High Court found that the government had violated the constitutionally protected right to life and ordered that they provide appropriate protective equipment to frontline doctors and nurses.[42]
Suo Motu Writ Petition (Civil) No. 1/2020 re: Contagion of COVID 19 Virus in Prisons (India)
In India as elsewhere, overcrowded prison living conditions pose a threat to the health and wellbeing of incarcerated people, especially during infectious disease outbreaks. On March 16, 2020, the Supreme Court of India, in a case initiated on its own motion, ordered the configuration of High-Powered Committees at the state level that would recommend measures to protect prisoners and juveniles in remand homes. The court argued that the application of India’s Constitution to protect the life and liberty of citizens, through Articles 21 and 32, includes protecting prisoners, among others, from COVID-19.
Gopal Shiwakoti (Chintan) et al vs Prime Minister & Cabinet of Ministry & et al (Nepal)
In Nepal, the Supreme Court likewise played a significant role in addressing the vulnerability of inmates in overcrowded prison conditions that increase the risk of COVID-19 transmission.[43] In this case, six prisoners argued that inadequate efforts by the governments to address prison overcrowding during the pandemic violated the explicit right to health guaranteed to all Nepali citizens under Article 35 of the Constitution. In response, the Supreme Court ruled on August 3, 2020 that the fundamental right to health, which provided broader protections for basic health services and sanitation, justified the need for government action to reduce prison overcrowding as a means of mitigating the spread of COVID-19. In its ruling, the Court acknowledged that the infectious and dangerous nature of the virus obligated the government to find “alternative ways of penalizing like Probation and Parole.”[44]
Advocate Keshar Jung K.C & Advocate Lokendra Bahadur Oli vs. Nepal Government Ministry of Health (Nepal)
With COVID-19 testing and treatment remaining critical components of control and mitigation strategies, financial barriers to accessing these essential health services amidst the pandemic prompted a constitutional challenge in Nepal.[45] The petitioners argued that the Nepal government’s refusal to cover the cost of COVID-19 testing and treatment was unconstitutional as it threatened the right to health.[46] In response to the writ petition, the Supreme Court ruled in August 2020 that the government’s failure to provide free testing and treatment was a direct violation of the explicit right to health in Article 35 of the Constitution and thus ordered the government to provide these services to all citizens free of charge. In its ruling, the Supreme Court also emphasized that the constitutional right to health included the right to free basic health services and access to emergency health services.[47] Further, the Court rejected the government’s defense, which asserted that the nation’s limited financial resources justified the need to charge citizens for these critical services.
Assessing Constitutional Courts’ Capacity in a Public Health Crisis
The disproportionate impact of COVID-19 on marginalized groups has highlighted the importance of government action to address inequalities in living and working conditions, which have contributed to marked disparities in exposure and mortality. Moreover, while common pandemic mitigation measures--such as business shutdowns, school closures, and travel restrictions—had impacts on reducing spread, these measures also often had consequences for the social determinants of health, with outsized impacts on vulnerable groups such as low-income families, migrant workers, children, incarcerated individuals, and frontline health workers.
This study sought to examine whether constitutional courts can play a meaningful role in responding to these critical issues and challenges in the midst of a public health emergency like COVID-19. Our review found that constitutional cases addressing the intersection of COVID-19 and the social determinants of health arose in at least five continents and in countries across income groups, and that these rulings made a difference for core social and economic rights even during an immense global health crisis. In the U.K. and the U.S., courts were able to issue rulings in cases initiated well before the pandemic to protect immigrants’ access to fundamental food, income, housing, and medical supports, citing constitutional protections for equality and basic needs. In Malawi, Bosnia and Herzegovina, South Africa, India, and Nepal, court rulings assessing the scope and consequences of initial lockdown orders invoked constitutional rights to health, education, nutrition, equality, liberty, and freedom of movement to establish and affirm fundamental protections for migrant workers, their families, people living in poverty, schoolchildren, and the elderly. And drawing on explicit constitutional rights to life, liberty, health, safe working conditions, and basic health services, courts in India, Nepal, and Lesotho established a foundation for stronger government protections to improve the health and safety of living and working conditions during the pandemic, including for incarcerated people and frontline health workers.
To be sure, court rulings are only one step to protecting rights in practice—effective implementation is critical for ensuring these decisions make a difference. Yet some evidence indicates there have already been important, tangible impacts. For example, in India, the guidelines outlined by the High-Powered Committees—as ordered by the Supreme Court in the case addressing overcrowded prisons—resulted in the release of 17,000 incarcerated people by the state government of Maharashtra in May 2020, and tens of thousands more across all states during the “second wave” in 2021.[48] [49] Though implementation has varied across the country, some state governments have also taken specific actions to change prison environments to reduce risk of exposure to COVID-19, including through providing masks, reducing the number of visitors permitted, and transitioning hearings to an online platform.
Implications of Constitutional Design Decisions and Access to Justice Mechanisms
Both specific choices about constitutional design and a given country’s efforts to expand access to justice may make a difference as to how well constitutional courts are positioned to protect the social determinants of health amidst a public health emergency. The cases identified through this review were concentrated in low- and middle-income countries (LMICs), which may partly reflect the higher share of LMICs that have enshrined explicit social and economic rights. As our past research has shown,[50] [51] around 69% of low-income countries and 58% of middle-income countries, compared to 51% of high-income countries, explicitly guarantee some aspect of the right to health; likewise, 86% of low-income and 76% of middle-income countries guarantee some aspect of the right to education, compared to 74% of high-income countries.[52] Similarly, low- and middle-income countries are also slightly more likely than high-income to broadly guarantee a right to social security.[53]
Second, these cases also illustrated that even “aspirational” rights can make a difference. In Lesotho, the directive principle on safe working conditions, despite being explicitly non-justiciable, shaped the High Court’s interpretation of the right to life, yielding an important ruling improving health and safety for frontline health workers. In Malawi, the Constitution’s directive principle on basic needs, which calls on the government to “actively develop the health and the welfare of the people by progressively adopting and implementing policies and legislation aimed at achieving” nutrition and health, provided the textual basis for it to find that the Constitution “implicitly” protected a right to social security, meaning that the government had to take action to ensure the material needs of marginalized groups before imposing a lockdown that would interfere with their income. Given that aspirational provisions and rights framed in terms of progressive realization are more common in lower-income countries, indications that these more conservatively worded protections are nevertheless having impact in the courts bear relevance to future global health crises.
Finally, the accessibility of courts appears to matter: our review also identified a higher share of cases from countries that have reduced barriers to justice through broader standing requirements. In India and Nepal, for example, several of the featured cases were brought through public interest litigation (PIL), a well-established mechanism in both countries that allows any concerned citizen to bring a court case to enforce constitutional rights in matters with implications for their broader community. Moreover, while lockdowns have exacerbated barriers to justice as courts close across countries—particularly in those without the capability to shift to fully remote proceedings—Nepal took an affirmative step to ensure litigation remained an option, issuing a statement in March 2020 affirming that the Court would continue to hear cases on “issues related to individual rights and serious cases related to [the] pandemic” despite the lockdown.[54]
In addition, the ability of courts to bring cases suo motu—or on their own motion—was an important factor in India, where two of the cases featured in our review were court-initiated. While suo motu cases exist in a range of jurisdictions, they have become particularly common in India, with a distinct spike in suo moto rulings since 2010.[55] More broadly, judicial mechanisms that increase access to justice—and allow courts to issue rulings quickly, rather than after months or years of litigation—may be especially important tools for protecting the social determinants of health during times of crises, particularly given the high barriers to going to court that otherwise commonly affect people who have been directly harmed by government action.
Limitations
We acknowledge that our methodological approach has limitations. First, while we have aimed to capture the key elements of remedies ordered in each case, we have not systematically tracked implementation of the court orders. Future studies monitoring enforcement and measuring the impacts of these rulings on the social determinants of health would be valuable.
Second, while we focused on cases with clear implications for the social determinants of health, our scope was not exhaustive. As long acknowledged, fundamental human rights are indivisible and interdependent, and civil and political rights are integral to the fulfillment of social and economic rights. Throughout the pandemic, numerous governments have threatened or restricted civil and political rights in ways that will inevitably have impacts on health, including by restricting access to the judicial system and the ability to bring cases like those described in this article. Future research examining the health impacts of the growing political repression spurred by the pandemic across many countries would offer important insights.
Conclusion
The severity of COVID-19 has necessitated swift and broad governmental actions to reduce the spread of the disease. Yet even as they have helped curb transmission, governmental mitigation measures such as national lockdowns and school closures have simultaneously threatened important social determinants of health. Policies that address and strengthen social determinants of health are associated with better health outcomes amid infectious disease epidemics,[56] demonstrating the importance of addressing social and economic conditions that influence health both in the midst of a pandemic and during more typical times.
In a range of countries, constitutional protections for equality and social and economic rights—including the rights to life, health, education, and access to basic needs—have provided tools for ensuring that the social determinants of health remain prioritized even amidst extraordinary actions to limit infectious disease spread. When governments have failed to take critical steps to protect fundamental rights or when restrictions on movement have been imposed without due consideration for the social and economic consequences, constitutional courts have emerged as powerful arbiters of national responses to the pandemic and have compelled government actions that directly address critical social determinants of health, including working and living conditions, access to healthcare, and economic protections. As countries move toward recovery from the current pandemic, identifying how their constitutions and courts can provide the strongest foundation for responding to the next public health threat—while simultaneously improving health and wellbeing more broadly--represents an important opportunity for reflection and action.
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