## Facts

- South Africa faced a severe HIV/AIDS epidemic, with mother-to-child transmission (MTCT) causing an estimated 70,000–80,000 infant infections annually.
- Nevirapine, given as a single dose to the mother during labor and a single dose to the newborn, significantly reduced MTCT risk; the manufacturer offered to supply it free for five years.
- The national and provincial health departments limited Nevirapine provision to a small number of designated “pilot sites” and prohibited public-sector doctors at other facilities from prescribing it for MTCT prevention, even where medically indicated and where testing and counseling existed.
- The policy meant only a small fraction of public-sector births benefited, effectively excluding many indigent women and newborns dependent on public health services.
- Treatment Action Campaign, Dr. Haroon Saloojee, and the Children’s Rights Centre challenged the policy as violating constitutional rights to access health-care services and children’s rights to basic health-care services.
- The High Court declared the policy unconstitutional, ordered removal of restrictions, and required a comprehensive MTCT-prevention program; the government appealed.

## Issues

1. Whether restricting Nevirapine to pilot sites and barring its use at other capable public facilities violated the state’s obligations concerning access to health-care services and children’s basic health-care rights.
2. Whether the Constitution required the state to devise and implement a comprehensive, coordinated national MTCT-prevention program with reasonable time frames.
3. What standard courts should apply to socio-economic rights claims (including whether a “minimum core” is judicially enforceable) and whether the requested remedies impermissibly intruded on executive policymaking.

## Decision

- The Constitutional Court unanimously dismissed the appeal and largely upheld the High Court’s orders, with modifications to the remedial structure.
- The Court held the pilot-site-only restriction was unreasonable and inconsistent with the state’s constitutional duties, and that the exclusion of newborns from access to Nevirapine infringed children’s rights.
- The Court ordered the government to remove restrictions preventing most public facilities from providing Nevirapine where medically indicated and where adequate counseling and testing were available.
- The Court required the state to take reasonable measures to expand counseling and testing capacity and to implement a comprehensive national MTCT-prevention program within available resources and through progressive realization.
- The Court declined to adopt a judicially specified “minimum core” for the right of access to health care and declined to impose ongoing judicial supervision via a report-back order.

## Legal Principles

- Socio-economic rights are justiciable; courts review whether the state has taken reasonable measures, within available resources, to achieve progressive realization of rights to access health-care services.
- Reasonableness review evaluates both the design and implementation of state measures, including whether limits on access are justified and whether the program’s coverage and timing respond to urgent need.
- Socio-economic rights entail negative duties as well as positive duties; the state must not unreasonably prevent or impair access to health-care services.
- Where a government policy imposes an inflexible, blanket barrier to access to medically indicated care in facilities capable of providing it, the measure may be unconstitutional as unreasonable.
- Children’s rights to basic health-care services require particular attention where infants are dependent on the public system and where denial of basic preventive care risks severe harm.

## Conclusion

The court held that limiting Nevirapine to pilot sites and prohibiting its use at other capable public facilities was an unreasonable barrier to access to health care and inconsistent with children’s basic health-care rights, and it ordered removal of the restrictions and adoption of reasonable measures to implement and extend a national MTCT-prevention program.


Minister of Health v. Treatment Action Campaign (No. 2), 2002 (5) S. Afr. L. Rep. 721 (S. Afr. Const. Ct. 2002)