Constitutionalizing Health: Rights, Democracy And The Political Economy Of Health Policy

In recent decades there has been an increasing trend toward “constitutionalizing” health—identifying health as a right in national constitutions. Today more than half of written constitutions in the world contain such a right. Whether that is good, bad, or immaterial for the production of population health, however, is much debated. Does constitutionalization improve wellbeing or might it simply distract from or distort good health policy? This dissertation uses a nested analysis that pairs a large-N statistical analysis of 40 years of global health data with in-depth interviews with over 165 policymakers, activists, elected officials, lawyers, and judges in South Africa, India, Malawi, and Thailand. Empirical evidence shows that constitutionalizing health is a significant development in the institutions of health governance and can contribute to improved wellbeing. Over forty years of global health data, we can observe a small but significant health dividend for countries that have adopted the right to health, when controlling for the major alternative explanations of cross-national variation in mortality. Tracing health policy issues in South Africa and India reveals a right that operates as a “policy anchor”—tying health to the fundamental national political bargain and providing an innovation in the institutions of governance that helps policy entrepreneurs gain a foothold from which to drive policy to expand health capabilities. Shadow cases in Thailand and Malawi show that this shift can matter even without judicial intervention but depends on sufficient support structure to enable the full institutionalization of health as a right. These findings contribute to literature on law and rights, sharpen models of the public policy process, and respond to the need to better understanding the broader set of institutions in the political economy of development that drive improvements in population health. In a broader context, this study suggests that constitution-writing is health policymaking. Greater attention to constitutions and the process of institutionalizing rights is warranted for those engaged in global health, with implications for the U.S. and other countries of the global North as well

Ebola and War in the Democratic Republic of Congo: Avoiding Failure and Thinking Ahead

The Ebola epidemic in the Democratic Republic of Congo (DRC) is exceptionally dangerous, occurring within active armed conflict and geopolitical volatility, including a million displaced persons. With 421 cases, 240 deaths, and the numbers increasing, this Ebola outbreak is the second deadliest in history. Recent spread to Butembo, home to 1.2 million people, raised concerns. The DRC, World Health Organization (WHO), and partners are leading a vigorous international response, yet despite deploying an experimental vaccine, cases doubled in October 2018 and many cases had unknown origin. Uncontrolled Ebola outbreaks can expand quickly, as occurred in West Africa in 2014. Averting that outcome in the DRC requires rapid action including a strengthened public health response, security, and community outreach. If violence escalates, it could compromise a fragile response. Yet resources are insufficient. The United States and other countries are not permitting personnel deployment to the epicenter, including from the Centers for Disease Control and Prevention (CDC) and US Agency for International Development (USAID). In this Viewpoint, we review recommendations of experts convened by Georgetown University and listed at the end of this article. The United States and international community should launch high-level political mobilization, with diplomatic, human, and economic resources. It is critical to recognize that future health crises will occur in fragile, insecure settings. To prepare, the international community needs long-term planning and enhanced capacities to improve the safety and effectiveness of epidemic response operations

Vaccine Politics: Law and Inequality in the Pandemic Response to COVID-19

International mechanisms failed to achieve equitable distribution of COVID-19 vaccines—prolonging and deepening the pandemic. To understand why, we conduct process tracing of the first year of international policymaking on vaccine equity. We find that, in the absence of a single venue for global negotiation, two competing law and policy paradigms emerged. One focused on demand and voluntary action by states and firms, while the alternative focused on opening knowledge and expanding production through national and international law. While these could have been complementary, power inequalities between key actors kept the second paradigm from gaining traction on the global agenda. The failure of the prevailing policy paradigm to secure equity is explained, not by unforeseen technical and financing challenges as some suggest, but by a fundamental misalignment with the political environment. While norm entrepreneurs encouraged sharing, political incentives pushed governments towards securing and hoarding doses. Firms responded to the latter. Mechanisms like COVAX proved incapable of countering these predictable international and domestic political forces. Earlier funding would not likely have changed the behaviour of states or firms in the absence of legal commitment. Barring significant geopolitical changes, a shift to include open/supply-focused policies will be necessary to achieve equity in future pandemics

Playing politics: the World Health Organization’s response to COVID-19

The challenges of the World Health Organization (WHO) begin, perhaps, with its name—framed as one organization, spanning the globe, and tasked with securing, as defined by article 1 of its constitution, “the attainment by all peoples of the highest possible level of health” (WHO, 1946). Yet the gap between the expectations of WHO and how global political actors have shaped its structure and its capacities is vast—never more so than during the COVID-19 pandemic. It is necessary to look at WHO from at least two perspectives: (1) its role as a scientific, technical, and humanitarian organization and (2) as an international organization and venue for international political negotiation, diplomacy, and policy-making. These two different, at times conflicting, missions leave WHO in a precarious position and have opened it to criticism over the years (Siddiqi, 1995). Some argue that WHO’s importance stems primarily from its political and agenda-setting functions, whereas others argue the technical information-gathering, standard-setting, and cooperation-related activities are paramount and that the agency’s political nature detracts from these activities (Clift, 2014; Jamison et al., 1998; Retreat, 1996; Ruger & Yach, 2009). There have even been calls over the years to split these functions (Hoffman & Røttingen, 2014)

Drivers of Health Policy Adoption: A political economy of HIV treatment policy

Why do some countries rapidly adopt policies suggested by scientific consensus while others are slow to do so? Through a mixed methods study, we show that the institutional political economy of countries is a stronger and more robust predictor of health policy adoption than either disease burden or national wealth. Our findings challenge expectations in scholarship and among many international actors that policy divergence is best addressed through greater evidence and dissemination channels. Our study of HIV treatment policies shows that factors such as the formal structures of government and the degree of racial and ethnic stratification in society predict the speed with which new medical science is translated into policy, while level of democracy does not. This provides important new insights about the drivers of policy transfer and diffusion and suggests new paths for practical efforts to secure adoption of “evidence-based” policies

Tuberculosis, human rights, and law reform: Addressing the lack of progress in the global tuberculosis response

In 2018, the United Nations General Assembly convened the first-ever high-level meeting (HLM) on tuberculosis (TB). Since that time news on the world’s most lethal infectious disease is not good—the 2019 WHO TB report shows 1.2 million people died from TB, a number that has fallen just 11% since 2015, less than one-third of the way towards the End TB Strategy milestone of a 35% reduction (to about 850 million deaths) by 2020. The same number of people, 10.0 million, are estimated to have fallen ill with TB in 2018 as in 2017. The stubborn persistence of TB is attributable to glaring gaps in case detection and treatment. While case detection has increased in recent years, there is still a significant gap between the 7 million new cases reported and the 10 million incident cases estimated in the most recent WHO data—and treatment success continues to hover at only 85%. There has long been a call for a shift toward a “human rights-based approach” in TB—building policies and programs explicitly on the norms and values set out in international human rights law, treating people with TB as rights holders in their interaction with the state and the health system, and working to overcome stigma and discrimination. Yet laws in high TB-burden countries (HBCs) have not been reformed to include basic rights protections. This helps explain the lack of progress, as individuals who fear discrimination and coercion may avoid diagnosis and treatment. Thus, TB stands in stark contrast to HIV/AIDS, for which the international community has moved far more decisively to recognize and protect key rights, even as more progress is needed. At the UN, heads of state committed to removing discriminatory laws and policies against people with TB, protecting and promoting their human rights and dignity, as a key part of a strategy to improve the TB response and end the epidemic. Here, we analyze key areas of law with particular importance for TB, focusing on five aspects of compulsory public health powers in law and on laws related to migration. We identify significant gaps between core human rights norms and existing legal environments

Intellectual Property and the Politics of Public Good in COVID-19: Framing Law, Institutions, and Ideas during TRIPS Waiver Negotiations at the WTO

Context: To facilitate the manufacturing of COVID-19 medical products, in October 2020, India and South Africa proposed a waiver of certain WTO intellectual property (IP) provisions. After 18 months, a narrow agreement that did little for vaccine access passed the ministerial, despite the pandemic’s impact on global trade, which the WTO is mandated to safeguard. Methods: The authors conducted a content analysis of WTO legal texts, key actor statements, media reporting, and the WTO’s procedural framework to explore legal, institutional, and ideational explanations for the delay. Findings: IP waivers are neither legally complex nor unprecedented within WTO law, yet TRIPS waiver negotiations exceeded their mandated 90-day negotiation period by nearly 2 years. Waiver opponents and supporters engaged in escalating strategic framing, which justified and eventually secured political attention at head-of-state level, sidelining other pandemic solutions. The frames deployed discouraged consensus on a meaningful waiver, which ultimately favored the status quo that opponents preferred. WTO institutional design encouraged drawn-out negotiation while limiting legitimate players in debate to trade ministers, empowering narrow interest group politics. Conclusions: Despite global political attention, the WTO process contributed little to emergency vaccine production, suggesting a pressing need for reforms aimed at more efficient and equitable multilateral processes

Employing human rights frameworks to realize access to an HIV cure

IntroductionThe scale of the HIV pandemic – and the stigma, discrimination and violence that surrounded its sudden emergence – catalyzed a public health response that expanded human rights in principle and practice. In the absence of effective treatment, human rights activists initially sought to protect individuals at high risk of HIV infection. With advances in antiretroviral therapy, activists expanded their efforts under international law, advocating under the human right to health for individual access to treatment.DiscussionAs a clinical cure comes within reach, human rights obligations will continue to play a key role in political and programmatic decision-making. Building upon the evolving development and implementation of the human right to health in the global response to HIV, we outline a human rights research agenda to prepare for HIV cure access, investigating the role of human rights law in framing 1) resource allocation, 2) international obligations, 3) intellectual property and 4) freedom from coercion.ConclusionsThe right to health is widely recognized as central to governmental, intergovernmental and non-governmental responses to the pandemic and critical both to addressing vulnerability to infection and to ensuring universal access to HIV prevention, treatment, care and support. While the advent of an HIV cure will raise new obligations for policymakers in implementing the right to health, the resolution of past debates surrounding HIV prevention and treatment may inform claims for universal access

Access to lifesaving medical resources for African countries: COVID-19 testing and response, ethics, and politics

Coronavirus disease 2019 (COVID-19) has revealed how strikingly unprepared the world is for a pandemic and how easily viruses spread in our interconnected world. A governance crisis is unfolding alongside the pandemic as health officials around the world compete for access to scarce medical supplies. As governments of African countries, and those in low-income and middle-income countries around the world, seek to avoid potentially catastrophic epidemics and learn from what has worked in other countries, testing and other medical resources are of concern. With accelerating spread, funding is urgently needed. Yet even where there is enough money, many African health authorities are unable to obtain the supplies needed as geopolitically powerful countries mobilise economic, political, and strategic power to procure stocks for their populations. We have seen this before. In the AIDS pandemic lifesaving diagnostics and drugs came to many African countries long after they were available in Europe and North America. In 2020, this situation can be avoided. Although health system weakness remains acute in many places, investments by national governments, the African Union, and international initiatives to tackle AIDS, tuberculosis, malaria, polio, and post-Ebola global health security have built important public health capacities. Global leaders have an ethical obligation to avoid needless loss of life due to the foreseeable prospect of slow and inadequate access to supplies in Africa

Law, criminalisation and HIV in the world: have countries that criminalise achieved more or less successful pandemic response?

How do choices in criminal law and rights protections affect disease-fighting efforts? This long-standing question facing governments around the world is acute in the context of pandemics like HIV and COVID-19. The Global AIDS Strategy of the last 5 years sought to prevent mortality and HIV transmission in part through ensuring people living with HIV (PLHIV) knew their HIV status and could suppress the HIV virus through antiretroviral treatment. This article presents a cross-national ecological analysis of the relative success of national AIDS responses under this strategy, where laws were characterised by more or less criminalisation and with varying rights protections. In countries where same-sex sexual acts were criminalised, the portion of PLHIV who knew their HIV status was 11% lower and viral suppression levels 8% lower. Sex work criminalisation was associated with 10% lower knowledge of status and 6% lower viral suppression. Drug use criminalisation was associated with 14% lower levels of both. Criminalising all three of these areas was associated with approximately 18%-24% worse outcomes. Meanwhile, national laws on non-discrimination, independent human rights institutions and gender-based violence were associated with significantly higher knowledge of HIV status and higher viral suppression among PLHIV. Since most countries did not achieve 2020 HIV goals, this ecological evidence suggests that law reform may be an important tool in speeding momentum to halt the pandemic