A neo-institutional analysis of the hidden interaction between the Israeli Supreme Court and the Ministry of Finance: the right to healthcare services

Daniel Sperling,Nissim Cohen

doi:10.1186/s13584-018-0261-9

Abstract

BackgroundUnder structural conditions of non-governability, most players in the policy arena in Israel turn to two main channels that have proven effective in promoting the policies they seek: the submission of petitions to the High Court of Justice and making legislative amendments through the Economic Arrangements Law initiated by the Ministry of Finance. Nevertheless, an analysis of the principal trends emerging from the High Court of Justice rulings and legislative amendments through the Economic Arrangements Law indicates that these channels are open to influence, primarily by forces that are essentially neo-liberal. Little is known about the effects of these trends on the right to healthcare services, which in Israel has not been legislated as an independent constitutional law in Basic Laws.MethodsWe use four major legal cases decided by the Supreme Court of Israel in the past 10 years where the Court reviewed new legislative initiatives proposed by the Economic Arrangements Law in the area of healthcare. We utilize an institutional approach in our analysis.ResultsA neo-institutional analysis of the legal cases demonstrates that petitions against the Economic Arrangements Law in the area of healthcare services have been denied, even though the Court uses strong rhetoric against that law and the government more generally in addressing issues that concern access to healthcare services and reforms in the healthcare system. This move strengthens the trend toward a neo-liberal public policy and significantly weakens the legal protection of the right to healthcare services.ConclusionIn deciding petitions against the Economic Arrangements Law in the area of healthcare, the Supreme Court allows the Ministry of Finance to be a dominant player in the formation of public policy. In doing so, it may be promoting a goal of strengthening its position as a political institution that aspires to increase the public’s trust in the judiciary and especially in the Supreme Court itself, in addition to exercising judicial restraint and allowing more leeway to the executive and legislative branches more generally.

Highlights

For three decades Israeli society has faced a variety of institutional changes that have significantly altered the nature of the Israeli welfare state and its healthcare system
While the literature regards judicial review as a legitimate forum for resolving the competing interests of the Court and the Parliament [5, 17] with a negligible influence of the Court on politics and policy [18], aside from more general explanations concerning judicial restraint the analysis we provide reveals how the Supreme Court seeks to increase its institutional power at the expense of the Government in an era of non-governability
The Law of Economic Arrangements is a political mechanism through which the Finance Ministry seeks to create, alter, and eliminate public policies, including policies set by the legislative authority itself

Summary

Introduction

Israeli society has faced a variety of institutional changes that have significantly altered the nature of the Israeli welfare state and its healthcare system. The difficult problems of non-governability, namely, the inability of society’s decision makers, politicians, and bureaucrats to shape public policy and implement it on the ground effectively, facing Israeli society [1,2,3,4] help explain these changes and how they take place While these problems started in the 1970s with a growing tension between the government and society, they reached their peak at the beginning of the twenty-first century with increasing social and economic gaps among constituent groups in society. Numerous structural conditions and social processes have led large swaths of Israeli society to make it a rule of thumb to “create facts on the ground.” This activity, which has been termed “alternative politics,” is evident in the literature on Israel in general [6] as well as in the Israeli healthcare policy arena [7, 8]. Little is known about the effects of these trends on the right to healthcare services, which in Israel has not been legislated as an independent constitutional law in Basic Laws

Results

Discussion

Conclusion