¹ West, Robin, “Rights, Capabilities and the Good Society” (2001) 69 Fordham L. Rev. 1901 at 1907, 1914–15Google Scholar; Horwitz, Morton J., “Rights” (1988) 23 Harv. Civ. Rts. Civ. Libs. L. Rev. 393 at 395, 398, 405–06Google Scholar; Simon, William H., “Rights and Redistribution in the Welfare System” (1986) 38 Stanford L. Rev. 1431 at 1432–35CrossRefGoogle Scholar.

² West, ibid. note 1 at 1918-20. See also Horwitz, ibid. note 1 at 404.

³ Liebenberg, Sandra, “The Value of Human Dignity in Interpreting Socio-economic Rights” (2005) 21 S. Afr. J. Hum. Rts. 1 at 7Google Scholar.

⁴ The “interdependence principle” is affirmed by the preambles of the International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171Google Scholar, Can T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force 23 March 1976, accession by Canada 19 May 1976) [ICCPR] and the International Covenant of Economic, Social and Cultural Rights, (entered into force 3 January 1976, accession by Canada 19 May 1976) [ICESCR] which state that “the ideal of human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.” See also art. 5 of the Vienna Declaration and Programme of Action, A/CONF/157/23 (12 July 1993), which states that “[a]ll human rights are universal, indivisible and interdependent and interrelated.” For a discussion of the principle and its implications see, for instance, Scott, Craig, “The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights” (1989) 27 Osgoode Hall L.J. 769Google Scholar.

⁵ Davis, Dennis M., Macklem, Patrick & Mundlak, Guy, “Social Rights, Social Citizenship and Transformative Constitutionalism: A Comparative Assessment” in Connaghan, Joanne, Fischl, Richard Micheal & Klare, Karl, eds., Labour Law in an Era of Globalization: Transformative Practices and Possibilities (Oxford: Oxford University Press, 2002) 511 at 512Google Scholar.

⁶ Constitution of the Republic of South Africa Act, 1996, No. 108 of 1996 [Constitution].

⁷ (2005) 254 D.L.R. (4th) 577. Among the measures contemplated by community and labour groups concerned with the Quebec government's response to Chaoulli, is the explicit entrenchment of a right to health under the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12. See Jackman, Martha, “The Last Line of Defense for [Which?] Citizens': Accountability, Equality and the Right to Health in Chaoulli” (2006) 44 Osgoode Hall L. J. 349 at 370–72Google Scholar.

⁸ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 [Charter].

⁹ Macklem, Patrick, Social Rights in Canada (April 2006) Univ. Toronto Legal Studies Series Research Paper No. 894327, online: Social Science Research Network http://ssrn.com/abstract=894327>Google Scholar at 23-4, 30-1 (citing Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R.1038; R v. Sharpe, [2001] 1 S.C.R. 45).

¹⁰ Davis, Macklem & Mundlak, supra note 5 at 529-30; Macklem, supra note 9 at 3.

¹¹ For discussion of these uses and effects see, for instance, Liebenberg, Sandra, “Needs, Rights and Transformation: Adjudicating Social Rights” (2006) 17 Stellenbosch L. Rev. 5 at 6–12Google Scholar; Pieterse, Marius, “Resuscitating Socio-economic Rights: Constitutional Entitlements to Health Care Services” (2006) 22 S. Afr. J. Hum. Rts. 473 at 476–78Google Scholar.

¹² Davis, Macklem & Mundlak, supra note 5 at 530, 533.

¹³ See discussion and statistics cited by, for example, Chapman, Audrey R., “Core Obligations Related to the Right to Health and their Relevance for South Africa” in Brand, Danie & Russell, Sage, eds., Exploring the Core Content of Socio-economic Rights: South African and International Perspectives (Pretoria: Protea Publishers, 2002) 35 at 52Google Scholar; Mhone, G.C.Z. “The Socio-economic Context and Aspects of Social Security Policy in South Africa” in Olivier, M.P. et al. , eds., Introduction to Social Security (Durban: LexisNexis Butterworths, 2004) 1Google Scholar.

¹⁴ See Christianson, M.A., “Health Care” in Strydom, E.M.L., ed., Essential Social Security Law (Cape Town: JUTA, 2001) 122 at 137Google Scholar; MacFarlane, Marco, “Health and Welfare” in Kane-Berman, John, ed., South Africa Survey 2004/2005 (Johannesburg: S.A. Institute of Race Relations, 2006) 335 at 338Google Scholar; Nadasen, Sundrasagaran, Public Health Law in South Africa: An Introduction (Durban: Butterworths, 2000) at 21Google Scholar.

¹⁵ Only approximately 18 per cent of South Africans are treated in the private health care sector. However, approximately 80 per cent of health care expenditure takes place in the private sector, which also employs by far the greatest number of health care professionals. For these figures and for discussion of problems relating to quality discrepancies between private and public sector health care in South Africa see Hassim, Adila, Heywood, Mark & Berger, Jonathan, Health & Democracy (Cape Town: Siber Ink, 2007) at 17, 25-6, 164–166Google Scholar; MacFarlane, ibid. at 378.

¹⁶ See Hassim, Heywood & Berger, supra note 15 at 17; MacFarlane, supra note 14 at 363; Ngwena, Charles, “Access to Health Care as a Fundamental Right: The Scope and Limits of Section 27 of the Constitution” (2000) 25:1J.Jur. Sc. 1 at 6Google Scholar.

¹⁷ On HIV infection rates in South Africa and the predicted impact of the epidemic on mortality rates, life expectancy, economic well-being, social service provision, economic growth and the health care system see, for instance, Hassim, Heywood & Berger, supra note 15 at 26-27; MacFarlane, supra note 14 at 335; Mubangizi, John C., The Protection of Human Rights in South Africa (Cape Town: JUTA, 2004) at 134–36Google Scholar; Sprague, Courtenay & Woolman, Stu, A “Moral Luck: Exploiting South Africa's Policy Environment to Produce a Sustainable National Antiretroviral Treatment Programme” (2006) 22 S. Afr. J. Hum. Rts. 337 at 338Google Scholar.

¹⁸ On particular problems faced by developing countries in facilitating affordable access to HIV medication see, for instance, Fidler, David P., “Geographical Morality Revisited: International Relations, International Law and the Controversy over Placebo-controlled HIV Trials in Developing Countries” (2001) 42 Harv. Int. L.J. 299 at 300–03Google ScholarPubMed; Saito, Natsu Taylor “From Slavery and Seminoles to AIDS in South Africa: An Essay on Race and Property in International Law” (2000) 45 Villanova L.R. 1135Google Scholar.

¹⁹ R.S.A. Department of Health, White Paper for the Transformation of the Health System in South Africa (1997)Google Scholar at paras 1.1.2(f)-(g), 3.3, 3.8.2, 4.6.1. For discussion, see, for example, Hassim, Heywood & Berger, supra note 15 at 18-21; Nadasen, supra note 14 at 22-4; Ngwena, supra note 16 at 24-6.

²⁰ Nadasen, S. & Reddy, P., “Public Health Legislation: Towards Health for All in South Africa—Tobacco Control Legislation” (1999) 10 Stellenbosch L. Rev. 449 at 451Google Scholar.

²² Section 12(2) states: “Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction; (b) to security in and control over their body; and (c) not to be subjected to medical or scientific experiments without their informed consent.”

²³ Section 24(a) states: “Everyone has the right to an environment that is not harmful to their health or well-being.”

²⁴ Section 28(1)(c) states: “Every child has the right to basic nutrition, shelter, basic health care services and social services.”

²⁵ Section 35(2)(e) states: “Everyone who is detained, including every sentenced prisoner, has the right to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment”.

²⁶ Section 7 states: “(1) The Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. (3) The rights in the Bill of Rights are subject to the limitations contained in or referred to in section 36, or elsewhere in the Bill.”

²⁷ Section 39 states: “(1) When interpreting the Bill of Rights, a court, tribunal or forum - (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b) must consider international law; and (c) may consider foreign law. (2) When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

²⁸ U.N. Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health (2000) at paras 33; 35; 51Google Scholar [General Comment 14]. See also Guidelines 6 and 15(d) of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997) [Maastricht Guidelines]; Karrisha Pillay, “South Africa's Commitment to Health Rights in the Spotlight: Do we Meet the International Standard?” in Brand & Russell, eds., supra note 13, 61 at 64,74; Toebes, Brigit, The Right to Health as a Human Right in International Law (Antwerpen: Intersentia, 1999) at 326–32Google Scholar.

²⁹ UNCESCR General Comment 14, ibid. at para 35.

³⁰ ibid. at paras 33, 36-7. See also Maastricht Guidelines at 6; Pillay, supra note 28 at 64; Toebes, supra note 28 at 678.

³¹ There are, of course, high-profile court decisions dealing with substantive weaknesses in health-related laws and policies and their implementation, especially in relation to the government's response to HIV/AIDS (see, most prominently, Minister of Health v. Treatment Action Campaign (no 2), 2002 (5) SA 721 (CC)). Since these do not relate to the legitimizing/insulating effect of the rights, they are beyond the scope of this article.

³² These include the Choice on Termination of Pregnancy Act, No. 92 of 1996 (giving effect to reproductive freedom); the Medical, Dental and Supplementary Health Service Professions Amendment Act, No. 89 of 1997 (prescribing compulsory community service for medical graduates); the Medicines and Related Substances Control Amendment Act, No. 90 of 1997 (including various initiatives to make medicines more accessible and affordable); the Medical Schemes Act, No. 131 of 1998 (regulating the medical insurance industry with the goal of increasing access to medical care); the Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000 (bolstering protection of the right to equality in the health care setting, amongst others); the Mental Health Care Act, No. 17 of 2002 (expressing commitment to the provision of appropriate mental health care services) and the National Health Act, No. 61 of 2003 (objectives include increasing the availability, accessibility and quality of health care services and explicitly affirming the State's obligations to respect, protect, promote and fulfill health-related rights).

³³ These include Department of Health, National Drug Policy for South Africa (1996)Google Scholar; Department of Health, The Primary Health Care Package for South Africa - a Set of Norms and Standards (2000)Google Scholar (which contains the Patients Rights Charter, ibid. at 10) and Department of Health, Draft Charter of the Private and Public Health Sectors of the Republic of South Africa (2005).

³⁴ See Chirwa, Danwood Mzikenge, “The Right to Health in International Law: Its Implications for the Obligations of State and Non-state Actors in Ensuring Access to Essential Medicine” (2003) 19 S. Afr. J. Hum. Rts. 541 at 562–63Google Scholar; Heyns, C.H., “Extended Medical Training and the Constitution: Balancing Civil and Political Rights and Socioeconomic rights” (1997) 30 De Jure 1 at 14–6Google Scholar; Pieterse, Marius, A “Beyond the Welfare State: Globalization of Neo-liberal Culture and the Constitutional Protection of Social and Economic Rights in South Africa” (2003) 14 Stellenbosch L.Rev. 3 at 13, 26Google Scholar.

³⁵ (1986) 26 D.L.R. (4th) 200.

³⁶ Section 36 determines: “(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including - (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and the purpose; and (e) less restrictive means to achieve the purpose. (2) Except as provided in subsection (1) or any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

³⁷ 2001 (3) SA 1151 (CC) [Kyalami Ridge].

³⁸ Section 26 of the 1996 Constitution determines: “(1) Everyone has the right to have access to adequate housing. (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

³⁹ Kyalami Ridge, supra note 37 at paras. 29, 37-9, 51, 68, 103, 107, 114. For discussion, see Michelman, Frank I., “The Constitution, Social Rights, and Liberal Political Justification” (2003) 1 Int. J. of Const. L. 13 at 17–8Google Scholar; Tushnet, Mark, “Social Welfare Rights and the Forms of Judicial Review” (2004) 82 Tex. L. Rev. 1895 at 1898–99Google Scholar. In Stock v. Minister of Housing, 2007 (2) SA 9 (C), the Cape High Court followed Kyalami Ridge in refusing to grant an interdict against the establishment of a temporary residential area, despite non-compliance with administrative justice rights of neighbouring property owners, since such an interdict would be contrary to the right of access to adequate housing.

⁴⁰ For discussion of such regulation, see Nadasen, supra note 14 at 45-6; Chirwa, supra note 34 at 559.

⁴¹ In Reitzer Pharmaceuticals v. Registrar of Medicines, 1998 (4) SA 660 (T) at 674C-H, 684B-E, 6911-692A, the Pretoria High Court found that requirements relating to the registration of medicines, contained in the Medicine and Related Substances Control Act, No. 1 of 1965, limited economic activity rights in the interim Constitution, but that the limitation was reasonable and justifiable in light of the important public health goals served by the provisions.

⁴² TRIPS arts. 6-8; 27-8; 30-1. For discussion, see Gathii, James Thuo, “Construing Intellectual Property Rights and Competition Policy Consistently with Facilitating Access to Affordable AIDS Drugs to Low-end Consumers” (2001) 53 Florida L. Rev. 727 at 730, 763-64, 788Google Scholar; Ghosh, Shubha, “Pills, Patents and Power: State Creation of Gray Markets as a Limit on Patent Rights” (2001) 53 Florida L. Rev. 789Google Scholar; Murthy, Divya, “The Future of Compulsory Licensing: Deciphering the Doha Declaration on the TRIPs Agreement and Public Health” (2002) 17 Am. Univ. Int. L. Rev. 1299 at 1306-307, 1310-311, 1316–320Google Scholar; Vawda, Yousuf A, “Tripped-up on TRIPS: The Story of Shrinking Access to Drugs in Developing Countries” (2002) 13 Stellenbosch L. Rev. 352 at 354-55, 357–59Google Scholar.

⁴³ See Fidler, supra note 18 at 300-03; Joseph, Sarah, “Pharmaceutical Corporations and Access to Drugs: The Fourth Wave of Corporate Human Rights Scrutiny” (2003) 25 Hum. Rts. Q. 425 at 432–34CrossRefGoogle Scholar; Vawda, supra note 42 at 352, 357, 363.

⁴⁴ For instance, the declaration adopted during the 2001 W.T.O. Ministerial Conference held in Doha determines, inter alia, that “…the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health … and, in particular, to promote access to medicines for all,” W.T.O. Declaration on the TRIPS Agreement and Public Health (14 November 2001) at para 4Google Scholar. For discussion, see Murthy, supra note 42 at 1320-325; Sprague & Woolman, supra note 17 at 359; Vawda, Yousuf A, “From Doha to Cancun: The Quest to Increase Access to Medicines under WTO rules” (2003) 19 S. Afr. J. Hum. Rts. 679 at 679–81Google Scholar. The declaration further explicitly determines that “public health crises qualify as national emergencies under art. 31 of TRIPS,” Doha Declaration at para. 5(c).

⁴⁵ See Bollyky, Thomas J., “Balancing Private Rights and Public Obligations: Constitutionally Mandated Compulsory Licensing of HIV/AIDS Related Treatments in South Africa” (2002) 18 S. Afr. J. Hum. Rts. 530 at 531-32, 539, 556–57Google Scholar. For a discussion of South Africa's capacity to pursue some of these options, see Sprague & Woolman, supra note 17 at 360-61, 369-78.

⁴⁶ Supra note 32.

⁴⁷ ibid. inserting sections 15C and 22F-G respectively into the Medicines and Related Substances Control Act.

⁴⁸ See, for instance, De Vos, Pierre, “So Much to Do, so Little Done: The Right of Access to Anti-retroviral Drugs Post-Grootboom” (2003) 7 Law Democracy & Development 83 at 101–02Google Scholar; Joseph, supra note 43 at 442-43.

⁴⁹ See van der Merwe, A.P.S., “Amendment of the South African Medicine and Related Substances Control Act in Relation to the Exhaustion of Rights in Patent Law” (2000) 33 De Jure 68Google Scholar.

⁵⁰ Pharmaceutical Manufacturers' Association v. President of the RSA TPD 4183/98.

⁵¹ For an assessment of the T.A.C.'s strategy of combining legal argument and public mobilization in this case, see generally Heywood, Mark, “Debunking Conglomo-talk: A Case Study of the Amicus Curiae as an Instrument for Advocacy, Investigation and Mobilisation” (2001) 5 Law, Democracy & Development 133Google Scholar.

⁵² On the arguments advanced in and the outcome of the P.M.A. case, see De Vos, supra note 48 at 102; Heywood, supra note 51 at 135-58; Mwakyembe, Harrison & Kanja, George Mpundu, “Implications of the TRIPS Agreement on the Access to Cheaper Pharmaceutical Drugs by Developing Countries: Case Study of South Africa v. The Pharmaceutical Companies” (2002) 34 Zambia L.J. 111Google Scholar; Sprague & Woolman, supra note 17 at 361-62.

⁵³ Heywood, supra note 51 at 147.

⁵⁴ On this transformative characteristic of socio-economic rights, see for instance Liebenberg, supra note 11 at 10; Williams, Lucy A., “Issues and Challenges in Addressing Poverty and Legal Rights: A Comparative United States / South African Analysis” (2005) 21 S. Afr. J. Hum. Rts. 436 at 446Google Scholar; Woods, Jeanne M., “Emerging Paradigms of Protection for Second Generation Human Rights” (2005) 6 Loyola Univ. N. Orl. J. Publ. Int. L. 103 at 104, 128Google Scholar.

⁵⁵ Shown by Heywood, supra note 51 at 157.

⁵⁶ Regulations relating to a Transparent Pricing System for Medicines and Scheduled Substances GN R553 (30 April 2004).

⁵⁷ See MacFarlane, supra note 14 at 378.

⁵⁸ New Clicks South Africa v. Tshabalala-Msimang; Pharmaceutical Society of South Africa v. Tshabalala-Msimang 2005 (2) SA 530 (C) at 545F-46C; 570G-71A (per Yekiso J for the majority). See also the minority judgment, ibid. at 582F-83B.

⁵⁹ Pharmaceutical Society of South Africa v. Tshabalala-Msimang; New Clicks South Africa v. Minister of Health 2005 (3) SA 238 (SCA) at paras 77; 79-80.

⁶⁰ Minister of Health v. New Clicks South Africa 2006 (2) SA 311 (CC) at paras 1; 16 (per the entire Court); 32 (per Chaskalson CJ); 437, 514-17 (per Ngcobo J); 650-51 (per Sachs J); 704-06 (per Moseneke J). See also Affordable Medicines Trust v. Minister of Health 2006 (3) SA 247 (CC) at paras 21; 100, where the legitimacy of measures which restrict the dispensing of medicines by health care professionals, with the aim to increase access to safe medicines, was not questioned. For discussion of the New Clicks decision in the context of access to health care services, see Hassim, Heywood & Berger, supra note 15 at 445; 456-57.

⁶¹ White Paper, supra note 19 at para 4.1.3(a).

⁶² See s. 24A of the Health Professions Act 56 of 1974 (introduced by s. 22 of the Medical, Dental and Supplementary Health Service Professions Amendment Act, supra note 32); s. 14A of the Pharmacy Act, No. 53 of 1974 (introduced by s. 13 of the Pharmacy Amendment Act, supra note 32).

⁶³ See Sidiropoulos, Elizabeth et al. , South Africa Survey 1997/98 (Johannesburg: SA Institute of Race Relations, 1998) at 204Google Scholar; Sarkin, Jeremy, “Health” (1997/1998) S.A. Hum. Rts. Yearbook 97 at 122Google Scholar.

⁶⁴ See Forgey, Herma et al. , South Africa Survey 2000/01 (Johannesburg: S.A. Institute of Race Relations, 2001) at 234Google Scholar; Hassim, Heywood & Berger, supra note 15 at 184.

⁶⁵ Heyns, supra note 34 at 5-14, 17.

⁶⁶ ibid. at 14-6.

⁶⁷ See Van der Mussele v. Belgium, [1983] ECHR 13 and other cases discussed by Heyns (ibid.) at 7-11.

⁶⁸ Supra note 32.

⁶⁹ See White Paper, supra note 19 at para 3.10.2. For a discussion of the rationale for the certificate of need provision and its potential impact on the South African health system, see Carstens, Pieter & Pearmain, Debbie, Foundational Principles of South African Medical Law (Durban: LexisNexis, 2007) at 151–52Google Scholar.

⁷⁰ See The Financial Mail (10 October 2003); Bisseker, Claire, “Doctors go to Court” (2003) online: Health Systems Trust http://new.hst.org.za/news/index.php/20031015/Google Scholar.

⁷¹ (1989) 53 D.L.R. (4th) 171.

⁷² ibid. at 174-81, 186-87, 195, 197-98.

⁷³ See also Carstens & Pearmain, supra note 69 at 153.

⁷⁴ Wilson, supra note 71 at 197-98.

⁷⁵ Scott, Craig & Macklem, Patrick, “Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution” (1992) 141 Univ. Pennsylvania L. Rev. 1 at 32Google Scholar.

⁷⁶ United Nations Human Rights Council, A/HRC/4/035 (9 February 2007): Report of the Special Representative of the Secretary General (S.R.S.G.), John Ruggie, on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises: Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts [SRSG Report] at 5-6; 11-12. In the South African context, see also Chirwa, Danwood Mzikenge, “Non-state Actors' Responsibility for Socio-economic Rights: The Nature of their Obligations under the South African Constitution” (2002) 3(3) E.S.R. Rev. 2 at 4Google Scholar; Pieterse, supra note 34 at 18, 25-26; Pearmain, D.L., “Contracting for Socio-economic Rights: A Contradiction in Terms?” (2006) 69 T.H.R.H.R. 287 at 289Google Scholar.

⁷⁷ SRSG Report, ibid. at 11.

⁷⁸ On some of the possibilities in this regard in the South African context, see Pieterse, Marius, “Indirect Horizontal Application of the Right to Have Access to Health Care Services” (2007) 23 S. Afr. J. Hum. Rts. 157–79Google Scholar.

⁷⁹ Chaoulli, supra note 7 at paras. 2, 14, 49, 55-6 (per Deschamps J); 105, 155 (per MacLachlin C.J.C & Major J., Bastarache J. concurring); 164, 174, 236-37, 256, 263 (Per Binnie & LeBel JJ., Fish J. concurring).

⁸⁰ ibid. at paras. 165, 176, 256, 263, 277-79 (Per Binnie & LeBel JJ., Fish J. concurring). For academic support of this conclusion, see Jackman, supra note 7 at 373; Manfredi, Christopher P. & Maioni, Antonia, “The Last Line of Defense for Citizens': Litigating Private Health Insurance in Chaoulli v. Quebec” (2006) 44 Osg. Hall. L. J. 249 at 266–68Google Scholar; Ries, N.M., “Legal Rights, Constitutional Controversies, and Access to Health Care: Lessons from Canada” (2006) 25 Med. & L. 45 at 50–1Google ScholarPubMed.

⁸¹ Chaoulli, ibid. at paras. 4, 74, 101 (per Deschamps J); 122, 159 (per MacLachlin C.J.C & Major J., Bastarache J. concurring).

⁸² For criticism, see Jackman, supra note 7 at 360-61.

⁸³ See also Jackman, ibid. at 374-75.

⁸⁴ ibid. at 371-72.