The Right to Health from a Constitutional Perspective - the Example of the Nordic Countries

By Dr. Anna-Sara Lind, Uppsala Universityl

1 Point of departure: the paradigm of the welfare state It is well known, that the Nordic countries are deeply rooted in the welfare state. The realisation of social rights as part of the welfare state is, in practice, considered fundamental in these countries.2 However fundamental, this is shown to varying extent in the constitutions of the five Nordic countries.3 In this short article, I will make some reflections on the constitutional status of the right to health, taking the wording of the Nordic constitutions as the point of departure for my reflections.4 The realisation of social rights is, thus, one aspect of the welfare statej a common feature of the five countries is the fact that statutory legislation and regional and local self-government are the means chosen in order to materialise social rights. Tradi- tionally, constitutionally-granted individual rights have not been part of the Nordic tradition.s Thus, the connection between social rights and political will is intimate.6

1 Anna-Sara Unci, LL.D., Senior Lecturer of Public Law at the Faculty of Law, Uppsala University. She defended her thesis Sociala rattigheter i forandring [Social Rights undergoing Changes] in constitutional law in November 2009. Lind's research interests focus on fundamental rights in national constitutional and administrative law as well as in a European constitutional context. Lind is on the editorial board of Nordisk sOcialrattslig tidskrift. 2 Asbjorn Kj0nstad, Trygderettighetenes grunnlovsvern [The Constitutional Protection of Security Rights], Ad Notarn Gyldendal, 1994,p.14. 3 The Nordic Network of Research in Biomedical Law has existed for five years and several interesting seminars have been conducted by the researchers of the Network. Many of the encounters are comparative in nature; see Elisabeth Rynning, Oddny Mjoll Arnardottfr, Mette Hartlev, Henriette Sinding Aasen, and Sirpa Soini, "Recent Developments in Nordic Health Law". European Journal of Health Law, 17,2010, pp. 279-294, especially at pp. 281-282. 4 I do not suggest that this article is a profound comparative study. That has to be done in another context. Such a study would also include the legislation materialising constitutional rules and more of the case law from the courts etc. interpreting and applying the law. 5 Martin Scheinin, "Protection of Economic, Social and Cultural Rights in Finland - A Rights-Based Variant of the Welfare State?", in: Martin Scheinin (ed.) The Welfare State and Constitutionalism in the Nordic Countries - Nordic Perspectives, Nord 2001:5, pp. 245-285, at p. 245. 6 Which is always the case, maybe even more so in constitutional law. Cf. Jaakko Husa, Nordic Reflections on Constitutional Law, Peter Lang, 2002, pp. 20-22.

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This becomes even clearer when we take a closer look at the right to health. The realisation of this right demands a lot from a country's financial and 10gistical resources. With scientific progress, an ageing population, and financial pressures and restrictions, the right to health is becoming more crucial than ever before. At the same time, realising the right to health is fundamental to living a decent life with human dignity and being able to, as well as capable of, taking one's place in society as a citizen.7 This essay is structured as follows. First, the "presence" of the right to health (care) in the five constitutions is discussed, from the literal wording of the fundamental texts. Similarities and differences are outlined. Next, some of the challenges that the right to health care imposes on society, and is itself exposed to, will be discussed from a perspective of constitutional law.

2 A different or similar Nordic standpoint?

2.1 Introduction Of course, a most relevant question to consider is whether or not a constitutional discussion concerning if there is a right to health at all would be of interest. The constitution serves several aims. One is to set the limits and state the tools for the elected representatives as regards how to perform their duties while serving the people and using the power they have been given. Another is to guarantee the fundamental aims that should prevail over a longer period of time in a country, in order to guarantee foreseeable legislation and stability. In this part, the constitutional protection of the right to health in the Nordic countries will be analysed on the basis of the wording of the five constitutions. As we shall see, the presence of a right to health in the Nordic constitutions differs from country to country. That is also the case, in general, regarding the welfare state in these constitutionsj it is not clearly expressed or visible in all the Nordic Constitutions.

2.2 Earlier constitutions - "older" rights? The cases ofDenmark and Norway The oldest constitution in force in the Nordic countries is that of Norway, from 1814. In this constitution, there is no explicit provision regarding the right to health care, with the position of social rights being weak in general. However, the right to property is stated in Article 105:

If the welfare of the State requires that any person shall surrender his movable or immovable property for the public use, he shall receive full compensation from the Treasury.

7 Cf. T.H. Marshall, Class, Citizenship and Social Development, Doubleday and Company, Inc, 1964, pp. 28-29.

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The first paragraph of Article 110 mirrors the importance of work to those without property: "It is the responsibility of the authorities of the State to create conditions enabling every person capable of work to earn a living by his work:'8 These two articles, together with Article 97 which generally prohibits retroactivity, have been the basis for recent cases concerning social protection.9 A specific or general right to health is not included; however, in the newer Article 11ob, the right to environment includes some health aspects since it states that "every person has a right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained': In addition, since 1999 the Human Rights Act implements the European Convention for the Protection of Human Rights and Fundamental Freedoms and the two United Nations' Con- ventions from 1966 on Civil and Political Rights and Economic, Social and Cultur- al Rights. ID Accordingly, these conventions take precedence over national rules that conflict with them. The right to health that follow from these conventions has thus, from a constitutional perspective, been strengthened. I I In the Danish constitution, from 1849 (with amendments in 1953), Articles 71-80 contain fundamental and human rights. The right to health is not expressed in the wording of this constitution; 12 however, as the right to property is expressed in Ar- ticle 73, social rights have been considered to be covered (to some extent) by it, in paragraph 1: "The right of property shall be inviolable. No person shall be ordered to surrender his property except where required in the public interest. It shall be done only as provided by statute and against full compensation:' However, as is the case in the Norwegian constitution, those who cannot support themselves are entitled to some protection under the constitution. Article 75 paragraph 2 states that these persons are entitled to public assistance if they meet the conditions stipulated by law. 13 When comparing the constitutions of Norway and Denmark, we can see some similarities. The explicit general values referring to the welfare state are not included. So- cial protection has not been constitutionally protected, nor has the individual right to health. In both countries, the European Convention has left constitutional traces (or brought about a constitutional revolution?). The European Convention became part of Danish law in 1992 and, in Norway, the constitution nowadays states that it is the responsibility of the authorities of the state to respect and ensure human rights (Article 110C). We will return to this question in Part 3.

Ole-Erik 0ie, "Rettsvernet for grunnpensjonen" [Legal protection for basic pension], in: Asbj0rn Kj0nstad (ed.), Trygderettighetenes grunnlovsvern [The Constitutional Protection of Security Rights}, pp. 17l. 9 Asbj0rn Kj0nstad, Trygderettighetenes grunnlovsvern [The Constitutional Protection of Security Rights}, Ad Notam Gyldendal, 1994, pp. 31-52, 60 and 73. See also Ole-Erik 0ie, Rettsvernet for grunnpensjonen [Legal protection for basic pension}, pp. 166-169. 10 Act of21 May 1999. 11 See also the Act of 2 July 1999 no. 63, the Patients' Rights Act. For more information about recent legislation in the field of health care in Norway, see Rynning et.al., op. cit., pp. 289-29l. 12 The right to health care is instead regulated in the Health Care Act [Sundhedslovenl no. 913 003 July 2010. 13 This paragraph is self-standing and not dependent on other paragraphs or rights, such as the right to property (Article 73). See Henrik Zahle, Menneske rettigheder [Human Rights}, Christian Ejlers' Forlag, 1989, pp. 221-222.

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2.3 The affirmation ofthe welfare state in the constitutions? The cases ofIceland and Sweden The constitution of Iceland dates from 1944, but has been amended since.14 Even though it is quite "young" as a constitution, it is not that modern in its style,lS which could be explained by Iceland's long traditions and close links to the legal cultures and legislations of Denmark and, to some extent, Norway.16 But this might change. Iceland, at the time writing, is experiencing a dynamic constitutional period due to a constitutional process that started in the wake of the financial crisis of last year. The current Article 76, introduced into the constitution in 1995, of the present constitution, states: "The law shall guarantee for everyone the necessary assistance in case of sickness, invalidity, infirmity by reason of old age, unemployment and similar cir- cumstances:' The result of the process is not foreseeable as yet,17 but it has been in- dicated that welfare rights are strengthened in the proposal for a new constitution presented at the end ofJuly 2011.18 Accordingly, the right to health services is recog- nised in Article 23 and social rights in Article 22. These rights are to be legally guaranteed, e.g. defined in law.19 Unfortunately, at the time writing, no explanations to the proposal are available. Combined with the prohibition of discrimination, in Article 65, case law from the Supreme Court indicates that the constitutionally-protected social rights in Article 76 are strengthened and can be justiciable.20 The case shows several interesting features. One of these is that the Supreme Court seeks to interpret the constitutional provisions in the light of Iceland's international obligations. The Court bases its arguments on the European Social Charter and the International Convention on Economic, Social and Cultural Rights as well as ILO Convention no. 102 Concerning Minimum Standards of Social Security. The Articles in the two conventions mentioned initially concern both t~e right to health and the prohibition of discrimination. This was done despite Iceland being a dualist country, in addition to the other Nordic countries, and despite the fact that none of the conventions have been incor-

14 See Kristin Benediktsdottir, "On the States' Obligation to Provide the Elderly a Decent Standard of Living. The Example of Iceland': Cuadernos Constitucionales de la Catedra Fadrique Furi6 Ceriol no 64/65, pp. 5-17, at p. 12. IS See also Kirsten Ketscher, "'Contrasting legal concepts of active citizenship. Europe and the Nordic countries", in: Bj0rd Hvinden & HakanJohansson, Citizenship in the Nordic Welfare States, Routledge, 2007, pp. 142-143, and Kirsten Ketscher, Socialret, Forlaget Thomson, 2nd ed., 2004. 16 Compare with Paavo Kastari, "Constitutional experience in the Nordic countries". Israel Law Review, No. 4, 1970, pp. 513- 526, at p. 523. 17 For information in English, on the constitutional reforms taking place in Iceland, see http:/ / stjornlagarad.is/ english. 18 The proposal for a new constitution was presented on 27 July 2011. No official translation of the proposal has yet been made. 19 See Rynning et.al., op.cit., p. 287 for a description of the laws regulating health care in Iceland. 20 See the case no. 125/2000 from the Supreme Court of Iceland (Tryggingastofnun rikisins v. Oryrkjabandalag Islands; The Organisation of Disabled in Iceland v. the Icelandic State).

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porated into nationallaw.21 The European Convention on Human Rights was imple- mented into Icelandic national law in the middle of the 1990S.22 The case shows that social rights as minimum rights are constitutionally protected and the outcome of the case was that a provision in the Social Security Act, which reduced social security payments to disabled persons, was deemed unlawful. The Swedish Instrument of Government (loG) does not contain an individual, justiciable right to health either which is explained to some extent by the development of constitutionally-granted rights in Sweden. The present loG came into force in 1975. It was the result of a lengthy transformation of the constitutional structures of Sweden that had started with the affirmation, in practice, of parliamentarianism at the beginning of the 1920S. Through different reforms in the 1950S and 1960s, Swe- den's parliament [Riksdag] was granted the position of the supreme power in Swe- den and this development was concluded by the new loG. The new constitutional law that was intended to lay down the most important features of how the public power should be organised and foremost set up the frame for the work of the elected politicians. During the 20th century, the constitution did not, accordingly, play a crucial role. From the 1920S and on, most political differences were handled through dialogue and political compromise, and not by applying or referring to the constitution. An important observation to make, in this context, is that the Social Democratic Party, in fact, had been forming majority governments for decades and thus had great opportunity to steer societal evolution. The affirmation of the welfare state, according to the government, was to be handled effiCiently by the different political actors using legislative measures. The result of this is that the question of constitutionally- granted rights was not given a high priority, with the party in power expressing, on several occasions, concerns about including (and an unwillingness to do so) individual rights in the constitution. They feared that such rights could threaten the strong expansion of the welfare state and give too much power to the courts. Even more difficult to accept were constitutional social rights considered to be.23 No political party was striving for social rights that would be subject to judicial control, nor guaranteeing a certain minimum level or core of rights. The result is, thus, that we have social rights formulated as goals or aims in the constitution, Chapter 1 Article 2 paragraph 2, and that this article only is being subject of political control not capable of being tried by the courts:

21 The fact that the cited articles were expressly mentioned in the explanatory note to an amendment to the Constitution in 1995 could have played a crucial role. For a short introducion on the Icelandic legal environment, see Oddny Mjoll Arnardottir, David Ther Bjorgvinsson, and Vidar Mar Matthiasson, "The Icelandic Health Sector Data Base': European Journal ofHealth Law, vo!. 6,1999, pp. 307-362, at pp. 308-309. See also David Ther Bjorgvinsson, Constitution and Government, 1996. 22 Law no. 68/1994. 23 Anna-Sara Lind, Sociala rattigheter iforandring [Social Rights undergoing Changes], Uppsala universitet, 2009, pp. 69-76.

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The personal, economic and cultural welfare of the private person shall be fundamental aims of public activity. In particular, it shall be incumbent upon the public institutions to secure employment, housing and education, and to promote social care and social security and good conditions for health.24

Accordingly, social rights are materialised through statutory law which in turn, to a large extent, hands a certain margin of appreciation over to the national agencies and the decision-makers at the local and regional levels. Regarding the right to health, this is the case with the Health and Medical Services Act (1982:763), the HMSA, a framework-oriented law. Its first article defines health and medical care while its second defines the obligation to prOVide good health care on equal terms to the entire population. Thus, the right to health is not an individual, subjective right; although the obligations of the state, the counties, and the municipalities are laid down in the HMSA.

2.4A stronger constitutional right to health? - The case ofPinland The constitution of Finland has the most extensive article on social rights, in com- parison with the other Nordic countries. Its Article 19 reads:

Those who cannot obtain the means necessary for a life of dignity have the right to receive indispensable subsistence and care.

Everyone shall be guaranteed by an Act the right to basic subsistence in the event of unemployment, illness, and disability and during old age as well as at the birth of a child or the loss of a provider.

The public authorities shall guarantee for everyone, as provided in more detail by an Act, adequate social, health and medical services and promote the health of the population.

Moreover, the public authorities shall support families and others responSible for proViding for children so that they have the ability to ensure the wellbeing and personal development of the children.

The public authorities shall promote the right of everyone to housing and the opportunity to arrange their own housing.

24 Author's translation. The loG changed on January 1st 2011 and, as yet, there is no official translation. UntilJanuary 1st 20 11, the wording was: "The personal, economic and cultural welfare of the private person shall be fundamental aims ofpublic activity. In particular, it shall be incumbent upon the public institutions to secure the right to health, employment, hOUSing and education, and to promote social care and social security:' Health was introduced into loG Chapter 1 Article 2 in 2002, see Government Bill 2001/02:72, pp. 23-2S.

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Aspects of the right to health are expressly stated in some of its paragraphs, but a closer reading of the travaux preparatoires and the decisions of the Constitutional Law Committee shows that the right to health is relevant when interpreting all of the paragraphs. The Article is supposed to correspond to the international social rights obligations that Finland has vis-a-vis the International Convention on Economic, Social and Cultural Rights, as well as the European Social Charter and the Addi- tional Protocol to the European Social Charter.25 To start with, the institutional aspects of social security are formulated in Article 19 paragraph 3. The authorities are accordingly obliged to safeguard access to social services, health and medical care, and also to promote public health.26 Statutory legislation is thus a very important tool in realising this Article of the constitution, since the wording of the paragraph does not explain how these services are to be organ- isedP Private social and health care services are allowed under the constitution but they have to respect and comply with the conditions stated laid down in Article 124 as regards how public tasks are to be performed by other bodies than public authorities.28 The importance of the public sector supplying enough services so that all in- dividuals can be full members of society is stressed in the travaux preparatoires.29 It is thus important that services are of such quality that this goal is realised and that everyone has a real chance of becoming a full member,3° The third paragraph does not define how health and medical care services should be organised, but focuses on the fact that access to sufficient services must be guaranteed by the means oflegislation. Access to and the way the services are organised are also dependent on other articles in the constitution; i.e. equality, the non discrimination rule, privacy and safety, the right to life, etc. Of course, human rights pursuant to Finland's international agreements should also be respected,31 The exact content of the rights expressed in paragraph 3 is not easily read from the literal wording of the paragraph. According to the Constitutional Law Committee of the Parliament [GrundlagsutskottetJ, the content of the right is decided by how the freedoms and rights are construed in combination with ordinary legislation,32 The

25 See Government Bill 309/1993. 26 Constitutional Law Committee, hereafter CLC [Grundlagsutskottet, GrUU]37 /2000, p. 2; CLC 10/2009, p. 2. 27 CLC 20/2004, p. 2. 28 Article 124: "A public administrative task may be delegated to others than public authorities only by an Act or by virtue of an Act, if this is necessary for the appropriate perfonnance of the task and ifbasic rights and liberties, legal remedies and other requirements of good governance are not endangered. However, a task involVing significant exercise of public powers can only be delegated to public authorities." See also the Health and Medical Services Act (2010/1326), the Private Health and Medical Care Act (152/1990), the Social Care Act (710/1982), the Public Health Act (66/1972), and the Specialised Sickness Care Act (1062/1989). 29 Government Bill 309/1993, p. 75, according to Markuu Suksi, Finlands statsraft [Constitutional Law o/Finland], Institutet for manskliga rattigheter vid Abo akademi, 2002, p. 200 n. 103. 30 CLC 20/2004, p. 2, with reference to Government Bill 309/1993; see also CLC 10/2009, p. 3. 31 Government Bill 309/1993 Motivering II/III rd. Detaljmotivering rorande 15 a § [Explanation II/III rd. Detailed explanation concerning Article 15 a]. See also CLC 20/2004, p. 2; CLC 37/2000, p. 2; CLC 10/2009, p. 2. 32 See CLC 20/2004, p. 2.

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Committee has adhered to the opinion expressed in the preparatory works, i.e. that it is absolutely important that remunerations paid by the state to the municipalities be raised so that the municipalities may have a real possibility of meeting their obligations in the field of health and medical care.33 Promoting public health includes both preventative social and health care measures as part of health care activities, in addition to a more general aspiration that society should evolve in such a way that ad- vances public health.34 An individual and subjective right to social assistance is expressed in Article 19 paragraph 1 and is applicable when the social guarantees of Article 19 paragraphs 2-4 are not enough for the needs of the individual to be met or when the applicant cannot get help from other persons such as family members. The first paragraph includes services aimed at guaranteeing a life in dignity, including the right to emergency health care.3S The constitution of Finland contains, accordingly, an individual and justiciable right to health care that has been defined by the Constitutional Law Committee. The individual right in the first paragraph entails that patients must have the possibility of accessing and obtaining health care at all hours and during week- ends and holidays, in order to get emergency health care.36 Furthermore, a life in dignity is to be defined on the basis of a cultural and historical context.37 This is closely related to the right to life, as stated in Article 7 of the constitution.38 The right to the security of basic livelihood, paragraph 2, is aimed at certain situa- tions where the individual encounters specific social risks, such as illness.39 The right that ensues from this paragraph is thus broader than the minimum right guaranteed in the first paragraph.4o It was not intended that the right to indispensable subsistence could be considered enough. Both the situation of the individual and the whole system of social security and care are to be considered when deciding whether or not the second paragraph is applicable.41 The income level and the services that are to be provided according to the first paragraph - indispensable subsistence and care - are accordingly the ones that safeguard the preconditions needed to lead a life in dignity. Examples include the right to food and housing to the extent necessary to retain

33 Government Bill 309/1993, p. 28; CLC Report (GrUB) 25/1994, p. 3; CLC 37/2000, p. 2; CLC 20/2004, p. 3 (that also adds that the e/fects of reforms must be followed closely). On local self-governance for the municipalities, see Article 121 of the constitution. 34 CLC 37/2005, p. 2, where the Constitutional Law Committee refers to the right to environment in Article 20 GL. 35 CLC 20/2004, p. 2, with reference to Government Bill 309/1993; CLC 10/2009, p. 3. 36 CLC 20/2004, p. 3. See also Government Bill 309/1993, pp. 73-74 and CLC 20/2004, p. 2. 37 As described byJan-ErikHelenelund, "Den subjektiva ratten till boende i grundrattighetssystemet" [The subjective right to housing in the system of fundamental rights], JFT 2/2005, p. 149, with references to Tuori. 38 Government Bill 309/1993 (Explanation II/III rd. Detailed explanation concerning Article 15 a). 39 PauIa Ilveskivi, "Fundamental Social Rights in the Finnish Constitution, with Special Reference to Their Enforcement by the Administration", in: Martin Scheinin (ed.), The Welfare State and Constitutionalism in the Nordic Countries - Nordic Perspectives, pp. 219-244, at pp. 224-225. 40 CLC 48/2006, p. 2. 41 CLC 33/2004, p. 2; CLC 48/2006, p. 2.

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one's health and "life spirit".42 According to the preparatory works for Article 19 paragraph 1, even aspects of the right to hOUSing are included insofar as the core of the right is concerned. This core cannot be limited and is aimed at guaranteeing health and life. The decisions of the Council also show that material standards have been defined concerning the content of the legislation. Accordingly, the subjective right to hOUSing must meet health care demands and respect the protection of the home and private life.43 As part of the first paragraph, the right is individual and justiciable. The Article ensures that everyone has a right to social security, even foreign citizens. In line with this, the Constitutional Law Committee has stated that it is absolutely important that legislative Bills respect the rules enshrined in EU law, the European Social Charter, and the United Nation's Convention on the Rights of the Child.44 Since the first paragraph lays down an individual and justiciable right, the Con- stitutional Law Committee has defined the right as having an absolute core which the legislator cannot limit by enacting statutory legislation. The "core" is made up of the fundamental aspects of, and preconditions for, a dignified life.4s The indispensible subsistence is not to be questioned by the authorities or withdrawn due to, for example, a lack of cooperation on the part of the individual in need. The same is to be said of the indispensible care, for example the right to health care.46

3 Challenges facing the Nordic countries - the need for con- sidering the right to health care in a constitutional context As we have seen, the constitutions of the Nordic countries show similarities on as regards how the notion of the welfare state is expressed at the constitutional level. A common feature is the decentralised state, whereby a lot of latitude is given to the regional and local levels. But there are also significant differences, due to constitutional traditions and choices. These differences are of importance when the realisation of social rights is at stake and, of course, when we study the protection of the right to health. A common feature of the constitutions is that, although the protection of the right to health is expressly stated in some constitutions, this protection is rather weak, giving quite a lot oflatitude to the legislator and the decision-maker in individual cases. Finland is the exception to this general "rule", with individual social rights (e.g. the right to health) included in its constitution. All the Nordic countries are under the influence of other legal orders than the national ones, with their international obligations within the United Nations and the

42 Government Bill 309/1993 (Explanation II/III rd. Detailed explanation concerning Article IS a). Compare with Article 13.1 ofthe European Social Charter. 43 The Social Care Act (710/1982) and the Subsistence Act (1412/1997) realise the individual right in Article 19 paragraph 1. 44 CLC 22/2004, p. 3, and CLC 48/2006, p. 4. 45 Compare with Article 7 of the constitution. 46 It should be added that the exclusion of asylum seekers from the application of Article 19 paragraph 1 was to be regulated via statutory legislation, and not by regulation.

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Council of Europe increasing. Interestingly enough, the importance of these obligations, as regards the effect of the national legal orders, differs between the Nor- dic countries. All five countries are dualistic and have all incorporated the European Convention on Human Rights. The difference detected in this paper is that the more recent constitutional reforms of Iceland and Finland have paved the way for the application of international conventions in the national legal order, even though the conventions have not been incorporated. The exception is Sweden; nowhere is it suggested in the travaux preparatoires for the last reform47 that international agreements should be applicable without incorporation and neither is it expressed that these agreements should gUide the courts in deciding whether or not a provision, in an individual case, should be considered unconstitutional. According to recent developments in public international law, the right to health is clearly defined and stressed as one of the core rights regarding what is to be considered an existence that is in line with "human dignity':48 This has greatly inspired the Finnish constitutional reform, and the 1995 reform in Iceland to some extent. This is not alien to the Nordic view of the welfare state, as expressed in national legislation strongly committed to equal access to health care. The notion of the welfare state is taken for granted, but is not clearly expressed or defined in most of the Nordic constitutions. Maybe that is part of how we choose to consider our national constitutions; maybe the time has come to ask ourselves if the welfare state should be mirrored in these constitutions in terms of expressing a fundamental value com- monly held by the Nordic peoples. The right to health is, perhaps, the social right being put to the test and challenged the most today. In times of financial crisis, the realisation of this right is threatened, something which in turn might lead to a negative impact on the most vulnerable in society, e.g. those who lack resources or the voice to get what they need. Another challenge is the more and more intensive cooperation within the European Union, which effects resource allocation, planning, and the realisation of the right to health. The rules governing financial constraint, free movement, state aid etc. all narrow the scope of the national legislator in steering the evolution of the welfare state. A constitutionally-protected right to health would, accordingly, strengthen the right of the individual (and people in general) since it would put demands and restrictions on the legislator. It would also be a signal, nationally, about the important value of the right to health.49 Internationally, in particular with regard to the European Union, it could be the clear communication of a fundamental and nationally important value.

47 Swedish Government Reports 2008: 125; Government Bill 2009/10: 80. 48 See Lind, op. cit., Chapter 3 with references. 49 Eleanor D. Kinney and Brian Alexander Clark, "Provisions for Health and Health Care in the Constilntions of the Countries of the World': Cornell International Law Journal, Vol. 37, 2004, pp. 285-355 at p. 304.

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