Fundamentality of the right to healthcare and sustainability of the public healthcare system (when more can be less)

Abstract

In the recent debate on the reform of the regulation of social rights in the Constitution and the rise of some of them to the category of fundamental rights, the right to healthcare takes on a prominent position. The proposal to transform the right to healthcare into a fundamental right, although it could have positive effects from the perspective of ensuring the minimum conditions for the exercise of freedom, also presents problems related to the economic power that the proposal would give to the Court and to the increase of litigation that it would cause. On the other hand, our constitutional system has enough legal instruments to guarantee such social right without the need of transforming it into a fundamental right.