Judicialization of orphan drugs in Brazil: the justiciability of a politically unpalatable issue

• Published in: International journal of constitutional law Vol. 19; no. 4; p. 1322
• Main Author: Cardoso, João Vitor
• Format: Journal Article
• Language: Spanish
• Published: Oxford Oxford University Press 30.12.2021
• Subjects: Case studies; Disadvantaged; Drugs; Judicial powers; Judiciary; Minority groups; Public officials; Rights; Brazil
• ISSN: 1474-2640; 1474-2659
• DOI: 10.1093/icon/moab130

Occasionally, elected officials invite the judiciary to resolve those particularly challenging problems for which there are no solutions or that they would rather not address. The access to orphan drugs in Brazil is a problem of such type. With the aim of illustrating how the judicial enforcement of social rights can favor vulnerable groups, this article deploys original data through a case study on the most prominently judicialized orphan drug in Brazil, reliant on quantitative as well as qualitative primary sources. Thus, it advances a twofold argument. First, when the exercise of a social right is associated with a politically unpalatable controversy, meaning one that does not foster enough political interest in a solution, despite embodying a pressing policy problem, elected officials are less likely to address it. Second, the expansion of judicial power would be defensible against the backdrop of an issue of such type. The empirical analysis yields new insights into normative debates concerning social rights judicial enforcement. When politically disadvantaged groups learn to use the constitutional framework to advance their interests by presenting rights claims, in the long term it can generate information about the scope of a legislative inertia, give a voice to silenced actors, and reallocate resources to care for urgent needs of minoritarian groups.