## Facts

- Israel’s National Health Insurance Law entitles all residents to join a health fund and receive free or subsidized medications and health services included in a national “health basket.”
- The health basket is periodically updated within a limited budget. A professional public committee considers candidate drugs and services and ranks them for possible inclusion; the government then approves the annual additions.
- In 2005, the committee considered hundreds of requests to add new technologies and drugs. Some expensive cancer treatments were not approved for inclusion.
- Petitioners Gila Luzon, Adolf Edri, and the “Last Border” Association for Cancer Patients were cancer patients (and an association representing them) whose physicians recommended medications not included in the basket. They asserted they could not afford the drugs privately.
- The petitioners challenged the government’s failure to subsidize these medications, arguing it violated constitutional rights drawn from Basic Law: Human Dignity and Liberty (including claims tied to dignity, life, and bodily integrity), even though the right to health is not expressly stated in legislation.
- After the petitions were filed, the state added all but one of the requested medications to the health basket, leaving only Erbitux (cetuximab) outside the basket.
- Erbitux was an innovative treatment for colon cancer, and at the relevant time there was no medical consensus that it saved lives or prolonged survival.

## Issues

1. Whether Basic Law: Human Dignity and Liberty creates an enforceable constitutional right requiring the state to fund a specific medication through the public health basket.
2. Whether the state’s refusal to include Erbitux in the publicly funded health basket was unlawful due to unreasonableness, improper weighting of budget limits, procedural defects, or discrimination.
3. Whether the Court should order inclusion of a particular drug (Erbitux) where its effectiveness for saving or prolonging life was uncertain and resource allocation required prioritization among competing medical needs.

## Decision

- The High Court of Justice dismissed the petitions.
- The Court held that, as a rule, there is no constitutional right to public funding of a particular medication; any duty to fund a specific drug would arise only in rare and exceptional circumstances.
- The Court found that the petitioners did not prove a constitutional violation on the record presented.
- The Court found no legal defect in the health-basket committee’s criteria or prioritization process and declined to replace the committee’s professional and budget-based judgments with judicial determinations.
- As to Erbitux, given the lack of consensus at the time regarding its life-saving or life-prolonging effect and the prioritization role of the basket process, the Court did not order its inclusion in the publicly funded basket.

## Legal Principles

- Basic Law: Human Dignity and Liberty may support state obligations connected to protecting life and dignity within public health arrangements, but it does not ordinarily grant an individual entitlement to state funding of any requested medication.
- A constitutional obligation to fund a particular drug, if it exists, is limited to rare and exceptional circumstances.
- Priority setting in publicly funded health care is primarily assigned to the political branches, using professional committees that weigh medical benefit, fairness, and cost within a limited budget.
- Budget limits are legitimate considerations in determining the scope of a national health basket; considering cost does not by itself violate constitutional rights.
- Judicial review of health-basket decisions focuses on legality, discrimination, serious procedural flaws, and extreme unreasonableness; courts generally will not re-rank competing medical technologies or rewrite annual basket decisions.

## Conclusion

Luzon v. Government of Israel holds that Israel’s Basic Law does not create a general, enforceable right to have the state fund a specific medication through the national health basket, and that courts will rarely compel inclusion of a particular drug. Applying a restrained form of review, the Court upheld the legality of the health-basket priority-setting process and refused to order public funding for Erbitux, especially given the uncertainty at the time about its effectiveness and the need to allocate limited public resources among competing health needs.


Luzon v. Government of Israel, HCJ 3071/05 (2008)