By Juan Pablo Vásquez, CAMBIOColombia, February 27, 2023
(Translated by Eunice Gibson, CSN Volunteer Translator)
CAMBIO talked with the constitutional lawyer about the possibilities of success of the bill that Minister Corcho is pushing, looking at an eventual constitutional challenge in case Congress approves it.
CAMBIO: Should the health care reform bill pass Congress as an ordinary law or as a statutory law?
Rodrigo Uprimny: I think that at least certain parts of the health care reform bill should be passed as a statutory law. The reason is that, although the Constitutional Court has left some ambiguities in the doctrine that states which bills must be passed as a statutory law, one permanent aspect in its jurisprudence is that those structural elements that define the content of a right require a statutory law. And if you analyze the way in which the right to health care is legally regulated now in Colombia, under Law 100, and also as developed in Statutory Law 1751, there is at least one element that is modified by the health care reform proposal.
CAMBIO: Which element are you referring to?
R.U.: The freedom of choice among health care providers. Why? Because the system that’s in place now, which some have called structured pluralism, relies a little more on the rules of the market and so establishes competition among the different EPS, in such a way that the user can choose one of them. That is what is regulated. It’s true that in some parts of the national territory, that right is more formal than real, but it is what’s being regulated.
What the health care reform would do is change that entryway, which you could denominate “multiple” in which you choose among different entryways and decide if you will go through one EPS or through another. The reform creates one single entryway: people will be assigned to a primary health care center at the territorial level and will not have a choice. Their way of entering the system is through that primary care center. That might be better, it might not be as good, OK, that is subject to debate, but what’s undeniable is that it changes at least that structural element.
CAMBIO: Why is this element so important that it requires the reform to be adopted as a statutory law?
R.U.: I don’t know if they would also change other elements that are central to the right to health care, but what seems relatively clear to me is that at least this element, the freedom of choice, does change and that’s not a minor element. It’s almost as if the element that structures the new health care system is the single entry point at a territorial primary care center that specializes in primary care and policies of prevention, and not through an EPS and a system of insurance. I don’t think that is a single operative change to satisfy the right, but rather that it changes a central element of the right to health care as that is now defined legally. The Law 1751 of 2015, which is statutory, includes that principle of freedom of choice and, as it was declared constitutional by the Court, it insists that that element correspond to the current design, where there is freedom of choice of an EPS. Changing at least that element requires a statutory law. And there might be others.
CAMBIO: Keeping in mind those considerations, what will be the fate of the health care reform if it passes and later is subjected by the Constitutional Court to an examination of its constitutionality?
R.U.: If this reform bill is debated and passed as it is now, an ordinary law, I think the whole thing will probably go down. I’ll explain with an example. Suppose that I present a bill to create an ordinary law with 100 Articles, and 15 of them belong in a statutory law. If those 15 Articles could easily be separated from the rest of the law, only the 15 Articles would be ruled unconstitutional and unenforceable by the Constitutional Court. That happened with the Administrative Procedure Code and the bill for the Administrative Adversary Procedures Code (CPACA). It contained a regulation that was an integral part of the right of petition. That was challenged and the challengers argued that the right of petition was fundamental. The Court agreed with the challengers and overturned the regulation of the right of petition, but it did not overturn the CPACA. In that case, you could separate the Articles and overturn them, but later conclude that the rest of the Code could stand.
In the case of the health care reform bill, the issue of the entryway to the health care system is a fundamental change. In Law 100 and in Law 1751 an insurance system is created with multiple insurers, the EPS, and people choose one. In the reform bill that possibility to choose is eliminated, and a single entryway is established. So, how could the Court overturn the single entryway and leave the rest of the law in effect? I think the Court in this case would likely apply a doctrine that it applied in studying the constitutionality of the Security and Defense Law in 2001. That time the Court concluded that the concept of presidential power was a key element of that law and thus it was unconstitutional and, because of that, it made no sense to overturn that element and leave the rest of the law in effect.
With this reform bill, I think something like that will happen. What would be left of health care reform if this idea of having only a single entryway disappears? It would be absolutely incoherent. That’s why it’s not a minor issue; nor is it a small aspect of the law. It’s one of the law’s essential principles.
CAMBIO: Suppose the reform bill is debated as an ordinary law, in spite of the warnings, and is finally passed. The implementation of the new health care system would start immediately and some months later, when the reform legislation gets to the Constitutional Court, it’s very possible that it will be overturned for the reasons you stated. Won’t it be difficult to take it apart?
R.U.: That would definitely be a problem and it would create a complicated institutional conflict, because it would put into effect a health care system in which one of its pillars would require reform of a statutory law. That’s why I think that to avoid that, it would be better to have some wait time and consider at least two aspects.
First, because the regulation is fundamental, it’s necessary that the whole bill be handled as a statutory law. The Court has said that when a fundamental right is regulated comprehensively in a law, the whole law should be considered as a statutory law. And second, if we reach the conclusion that the entire contents of the law don’t need to be a statutory law, given that several of its Articles modify the health care system but they don’t all change the right, we would have to go over it to see which parts of the reform bill do change it, and handle those parts as statutory laws. In that hypothetical scenario, we could first deal with the parts that change the right to health care as statutory law or else we could handle the two reforms in parallel lines, one more operational, and the other as statutory and altering the structural content of the right to health care.
In my judgment, is would be a serious mistake for the reform to continue to be dealt with as an ordinary law, knowing that there is an error that could bring the whole law down later in the Constitutional Court.