Sanitation rights, public law litigation, and inequality: a case study from Brazil

Public law litigation has been used in many places to advance human rights related to health. In Brazil, such lawsuits usually request that the government pay for pharmaceuticals to individuals. But could litigation play a role in shaping public health policies to benefit communities? To explore this question, this paper focuses on lawsuits involving determinants of health, namely water and sanitation public policies. This paper discusses the results of an empirical study of 258 Brazilian court orders, issued in a 10-year period, that address requests for sewage collection and treatment. The data show that the Brazilian judiciary is willing to improve access to sanitation services. However, litigation has addressed fewer than 177 out of the 2,495 Brazilian municipalities that lack both sewage collection and treatment systems, and lawsuits are concentrated in the richer cities, not in the poorest ones. This paper suggests that public law litigation can be used to foster public health policies similar to the way in which structural reform litigation and the experimentalism approach between courts and defendants have influenced public policies and achieved institutional reform in schools and prisons. However, greater effort is needed to target initiatives that would reach the most disenfranchised communities.