Is a flat-line a good thing? On the privatization of israel's healthcare system

American Journal of Law and Medicine

Volumn 36, Issue 2-3, 2010, Pages 452-481

  Seidman, Guy I ^a  

^a INTERDISCIPLINARY CENTER   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; FINANCIAL MANAGEMENT; HEALTH CARE COST; HEALTH CARE DELIVERY; HEALTH CARE POLICY; HEALTH CARE QUALITY; HUMAN; ISRAEL; LEGAL ASPECT; ORGANIZATION AND MANAGEMENT; SOCIAL WELFARE;

DELIVERY OF HEALTH CARE; FINANCING, GOVERNMENT; HEALTH EXPENDITURES; HEALTH POLICY; HUMANS; ISRAEL; PRIVATIZATION; QUALITY OF HEALTH CARE; SOCIAL WELFARE;

EID: 77957260078     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: 10.1177/009885881003600209     Document Type: Article

References (208)

1. See Israel at 62: Population of 7,587,000, YNET, ISRAEL NEWS, Apr. 18, 2010, available at http://www.ynetnews.com/articles/0,7340,L-3877574,00.html;
2. U.S. CENSUS BUREAU, ANNUAL ESIMATES OF THE RESIDENT POPULATION FOR THE UNITED STATES, REGIONS, STATES, AND PUERTO RICO: APRIL 1, 2000 TO JULY 1, 2009, available at http://www.census.gov/popest/states/NST-ann-est.html.
3. Wikipedia, List of Countries by Population, http://en.wikipedia.org/wiki/ List-of-countries-by-population (last visited May 18, 2010) (reflecting Israeli Central Bureau of Statistics census data);
4. Wikipedia, List of Countries and Outlying Territories by Total Area, http://en.wikipedia.org/wiki/List-of-countries-and-outlying-territories-by- total-area (last visited May 18, 2010).
5. See, e.g., JODIE T. ALLEN & ALEC TYSON, PEW RESEARCH CTR., THE U.S. PUBLIC'S PROISRAEL HISTORY (2006), available at http://pewresearch.org/pubs/39/ the-us-publics-proisrael-history.
6. See, e.g., the Human Development Index, where Norway is ranked first, the US 13th, Germany 22nd, and Israel 27th. U.N. DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 2009 OVERCOMING BARRIERS: HUMAN MOBILITY AND DEVELOPMENT 143 (2009), available at http://hdr.undp.org/en/media/HDR-2009-EN-Complete.pdf. For more on Israel's performance as a western nation see infra OECD report.
7. Here are some examples: Israel: Not Just Hummus, Facts About Israel, http://notjusthummus.com/israel/facts-about-israel/ (last visited May 3, 2010);
8. Manuel Trajtenberg, Innovation in Israel 1968-97: A Comparative Analysis Using Patent Data (2000), available at http://www.tau.ac.il/-manuel/pdfs/ Israeli%20Patents.pdf.
9. And the interest goes both ways. On Israeli academic's intellectual ties with the larger world community, see Pnina Lahav, American Moment[s]: When, How and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?, 10 THEORETICAL INQUIRIES L. 653 (2009);
10. Oren Gazal-Ayal, Economic Analysis of "Law Ö Economics," 35 CAP. U. L. REV. 787 (2007) (explaining the proliferation of law & economics in Israel);
11. Eric D. Gould & Omer Moav, Israel's Brain Drain, 5 ISRAEL ECON. REV. 1 (2007).
12. One eminent example is Israel's prominent role in the field of fertility treatment, the result of extensive state funding for such treatments. See generally Guy I. Seidman, Regulating Life and Death: The Case of Israel's "Health Basket" Committee, 23 J. CONTEMP. HEALTH L. & VOVY 9, 52-60 (2006) [hereinafter Seidman - Regulation];
13. and Dan Even, Israel Pioneering Fertility Treatments, But Not Legally, HAARETZ (Isr.), Jan. 12, 2010, http://www.haaretz.com/hasen/spages/H42032.html (noting that an international study carried out in Canada in 2002 ranked Israel first in the rate of fertility treatment cycles).
14. See Ethan Bronner, For Israelis, Mixed Feelings on Aid Effort, N.Y. TIMES, Jan. 22, 2010, at All ("A week ago, ahead of most countries, Israel sent scores of doctors and other professionals to Haiti. Years of dealing with terrorist attacks combined with an advanced medical technology sector have made Israel one of the most nimble countries in disaster relief - a factor that Western television news correspondents have highlighted. But Israelis have been watching with a range of emotions, as if the Haitian relief effort were a Rorschach test through which the nation examines itself. The left has complained that there is no reason to travel thousands of miles to help those in need - Gaza is an hour away. The right has argued that those who accuse Israel of inhumanity should take note of its selfless efforts and achievements in Haiti.").
15. BRUCE ROSEN & HADAR SAMUEL, EUROPEAN OBSERVATORY ON HEALTH SYSTEMS & POLICIES, ISRAEL: HEALTH SYSTEM REVIEW 31 (2009), available at http://www.euro.who.int/document/e92608.pdf;
16. see also Discover Israel, Medical Tourism, http://www.goisrael.com/ Tourism-Euk/Tourist+Information/Discover+Israel/Medical+Touri sm.htm (last visited May 3, 2010).
17. CENT. BUREAU STATISTICS (ISRAEL), NATIONAL EXPENDITURE ON HEALTH 1962-2007, at X (2009), available at http://www.cbs.gov.il/publications09/l372/ pdf/e-print.pdf [hereinafter ISRAELI CBS PUBLICATION 1372].
18. Press Release, Cent. Bureau Statistics (Isr.), In the Year 2008, The National Expenditure on Health - 7-7% of GDP (Aug. 16, 2009) at 2, available at http://www.cbs.gov.il/reader/newhodaot/hodaa-template.html?hodaa=200908172 [hereinafter CBS Press Release].
19. ISRAELI CBS PUBLICATION 1372, supra note 10, at 24.
20. The following charts are taken from Gabi Bin Nun & Nir Keidar, INTERNATIONAL COMPARISON IN HEALTHCARE SYSTEMS: OECD NATIONS AND ISRAEL 1970-2005 5 (2007, Hebrew),
21. and CBS Press Release, supra note 11, at 2.
22. WORLD HEALTH ORG., THE WORLD HEALTH REPORT 2000: HEALTH SYSTEMS: IMPROVING PERFORMANCE 153-55 (2000), available at http://www.who.int/entity/whr/ 2000/en/whr00-en.pdf
23. Id.
24. Id.
25. Joseph S. Coyne & Peter Hilsenrath, The World Health Report 2000: Can Health Care Systems Be Compared Using a Single Measure of Performance?, 92 AM. J. PUB. HEALTH 30, 30 (2002).
26. See Julie Knoll Raharatnam, et al., Worldwide Mortality in Men and Women Aged 15-59 Years from 1970 to 2010: A Systemic Analysis, 375 LANCET 1704, 1704 (2010). This measurement is important because it estimates how many adults will die during their most economically and socially productive years.
27. Id. 45ql5 is reported in expected deaths before age 60 per 1,000.
28. Id.
29. 13 Id.
30. Id. at 1705.
31. Current OECD members are: Australia, Austria, Belgium, Canada, Chile, Czech Republic, Denmark, Finland, France, Germany, Finland, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, South Korea, Luxembourg, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, Slovakia, Spain, Sweden, Switzerland, Turkey, United Kingdom, and the United States. Org. for Econ. Cooperation & Dev., Ratification of the Convention on the OECD, http://www.oecd.org/document/58/0,3343,en-2649-201185-1889402-1-1-1-1,00.html (last visited May 19,2010).
32. See Raharatnam, supra note 17, at 1711.
33. For 2010, Israel's 45q15 is 46 per 1,000 women with a range of 43-48, and 83 per 1,000 men, with a range of 79-88.
34. Id. The 2010 male 45q15 also puts Israel tenth place globally.
35. Id. at 1716.
36. See Raharatnam, supra note 17, at 1711-12.
37. CENT. BUREAU STATISTICS (ISR.), STATISTICAL ABSTRACT OF ISRAEL 2009, LIFE EXPECTANCY AND INFANT MORTALITY 923 (2009), available at http://www.cbs.gov.il/ shnaton60/st28-03.pdf [hereinafter CBS LIFE EXPECTANCY].
38. See id.
39. Id.
40. See ROSEN & SAMUEL, supra note 9, at 7-
41. Table is from ROSEN & SAMUEL, supra note 9, at 8.
42. WORLD HEALTH ORG, REGIONAL OFFICE FOR EUROPE, HIGHLIGHT ON HEALTH IN ISRAEL 2004 7 (2006) [hereinafter WHO 2004].
43. See CBS LIFE EXPECTANCY, supra note 23;
44. ROSEN & SAMUEL, supra note 9, at 7;
45. UNITED NATIONS, WORLD POPULATION PROSPECTS, THE 2006 REVISION 85-94 (2007), available at http://www.un.org/esa/population/publications/wpp2006/ WPP2006-Highlights-rev.pdf;
46. Jennifer Newell, Infant Mortality Rates: U.S. Ranks Poorly Among Industrialized Nations, HEALTHNEWS, NOV. 3, 2008, http://www.healthnews.com/ infant-mortality-rates-us-rankspoorly-among-industrialized-nations.
47. See Bin Nun & Keidar, supra note 13, at 8.
48. See Cybermetrics Lab, About Us, http://hospitals.webometrics.info/about. html (last visited Apr. 20, 2010).
49. Cybermetrics Lab, World Hospitals' Ranking on the Web: Distribution by Country, http://hospitals.webometrics.info/Distribution-by-Country.asp (last visited Apr. 20, 2010).
50. Id. Compare the United States, ranked 1st with 260 hospitals in the top 500 and a population of 309 million with Brazil, ranked 12th with 5 hospitals in the top 500 and a population of ca. 192 million; but also compare Switzerland, ranked 6th with 7 hospitals in the top 500 and a population of 7.8 million with Israel, ranked 17th with 4 hospitals in the top 500, and a population of 7-5 million. In fairness, the factual existence of top ranked hospitals in a country obviously does not automatically secure fair distribution and general availability of high quality treatment.
51. See Ronny Linder-Ganz, Clalit Wants the Crown, HAARETZ (Isr.), July 24, 2009, http://www.haaretz.com/hasen/spages/H02315.html;
52. and cf. Sarit Menahem, What's Holding Back Israeli Laser Technology for Medical Use?, HAARETZ (Isr.), Mar. 2, 2010, http://www.haaretz.com/hasen/spages/ 1153035.html (explaining that costs are holding back Israeli dentists' use of lasers).
53. See ROSEN & SAMUEL, supra note 9, at xxii.
54. Cf. Wikipedia, Breaking the Magician's Code: Magic's Biggest Secrets Finally Revealed, http://en.wikipedia.org/wiki/Breaking-the-Magician's-Code (last visited Apr. 23, 2010). This reference probably worked better at the live conference presentation.
55. The two following tables are from ISRAELI CBS PUBLICATION 1372, supra note 10, at 26 and 35.
56. CBS Press Release, supra note 11, at Table 2.
57. The term is Kupat Holim. See Seidman - Regulation, supra note 7, at 16-19.
58. The Clalit ("general") sick fund had a 62.2% share of all those insured in 1995 - and a 52.7% share in 2009, Leumit ("national") remained at 9.2%, Maccabi grew from 19.5% to 24.5%, and Meuhedet ("united") grew from 9.1% to 13.5%. ECON. & HEALTH INS. DIV., MINISTRY OF HEALTH, THE NATIONAL HEALTH INSURANCE ACT: COMPILATION OF STATISTICAL DATA 1995-2009 9 (2010), available at http://www.health.gov.il/ download/pages/stat2009-030210.pdf (Hebrew) [hereinafter NATIONAL HEALTH INSURANCE STATISTICS].
59. See Seidman - Regulation, supra note 7, at 16-19 (discussing public committee report that broke the impasse);
60. ROSEN & SAMUEL, supra note 9, at 25-29.
61. See Seidman - Regulation, at 19-21;
62. see also ROSEN & SAMUEL, supra note 9, at 22-23.
63. See Seidman - Regulation, supra note 7, at 20-21, 23;
64. and the discussion of the Luzon case, infra.
65. See Seidman - Regulation, supra note 7, at 21-22.
66. For a detailed discussion see Seidman - Regulation, supra note 7, at 43-46.
67. "See HCJ 2344/98 Maccabi Healthcare Svcs. v. Minister of Finance [2000] IsrSC 54(5) 729.
68. See id. ¶¶ 27-28.
69. See in more detail, the Luzon discussion, infra.
70. Id. ¶ 66.
71. Id. ¶ 69.
72. Id. ¶ 72.
73. Id. Justice Cheshin was joined by Justice Strasberg-Cohen, while Justice Englard would have rejected the petition. The records of Israeli Supreme Court website suggest that no further action has taken place in this open petition in the past decade. In a sense, the Luzon case, infra, picks up from this point, but moves it ahead no further.
74. ISRAELI CBS PUBLICATION 1372, supra note 10, at 25.
75. One of the most problematic legal manifestations of these economists' dominance is what is known as "the arrangements act" - a statute presented to the Knesset annually as a supplement to the budget act and including a laundry list of legislative amendments on a broad range of economic issues. Even the Supreme Court criticized this act "as a tool for effecting structural changes in the economy and society, including with respect to public disputed topics, which the Government would have had difficulty in passing by a regular legislative procedure." HCJ 4885/03 Israel Poultry Farmers Ass'n Agrie. Coop., Ltd. v. Israel [2004] IsrSC 59(2) at ¶ 7.
76. Nonetheless, the Court did not invalidate the law. See id. ¶ 25;
77. discussed in SUZIE NAVOT, CONSTITUTIONAL LAW OF ISRAEL 290-92 (2007).
78. Org. Econ. Coop. & Dev. [OECD], Policy Brief, Economic Survey of Israel, 2009, 3 (Dec. 2009), available at http://www.oecd.org/dataoecd/41/30/ 44383721.pdf.
79. Meirav Arlosoroff, Soft Landing/Israel Teaches the World a Lesson in Economics, HAARETZ (Isr.), Sept. 15, 2009, http://www.haaretz.com/hasen/pages/ ShArt.jhtml?itemNo=1114617&contrassID=2&subContr assID=2 ("Yes, among the OECD nations, Israel behaved like the only responsible adult.").
80. Ethan Bronner, Issues Stand Before Israel In Joining Elite Group, N.Y. TIMES, Jan. 20, 2010, at A7 (Nonetheless, he notes Israel's "secretive weapons trade, patent-bending drug industry and occupation of Arab lands are raising last-minute questions.").
81. "[B]ecause of tightening access to benefits and cuts in income transfers to the workingage population including unemployment benefit, social assistance and in particular child allowances to the many large families. Compared to OECD countries, public spending on pension transfers (4.9% of GDP vis-à-vis an OECD average of 6.0%) and health (4.4% of GDP in Israel, 6.3% across the OECD) is comparatively low." OECD, OECD REVIEWS OF LABOUR MARKET AND SOCIAL POLICIES: ISRAEL 18 (2010).
82. Nurit Wurgaft, Z Exist, Therefore I Can Be Privatized, HAARETZ (Isr.), Dec. 10, 2009, http://www.haaretz.com/hasen/spages/1132542.html.
83. See Ruth Sinai, First Education, Then Health - Now Welfare Faces Privatization, HAARETZ (Isr.), Apr. 17, 2008, http://www.haaretz.com/hasen/ spages/975290.htm.
84. On the Wisconsin plan for the unemployed, see Assaf Adiv, Punishing the Poor, 93 CHALLENGE (Workers Advice Ctr., Isr.), Sept.-Oct. 2005, http://www.workersadvicecenter.org/Sept-05/Wisconsin.htm.
85. See Avirama Golan, The Privatization of Children's Rights, HAARETZ (Isr.), Jan. 17, 2010, http://www.haaretz.com/hasen/spages/1143058.html (quoting the Israeli State Comptroller's statement that "privatizing health services for students is more expensive and works to the disadvantage of children").
86. See Ran Hirschl, Israel's "Constitutional Revolution:" The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order, 46 AM. J. COMP. L. 427, 428 (1998).
87. Dani File, The Health Business Under Neo-Liberalism: The Israeli Case, 25 CRITICAL Soc. POLV 180, 184 (2005).
88. Id.
89. The following table is taken from ISRAELI CBS PUBLICATION 1372, supra note 10, at 28.
90. The following table is taken from ISRAELI CBS PUBLICATION 1372, supra note 10, at 38.
91. Taken from ISRAELI CBS PUBLICATION 1372, SUPRA NOTE 10, AT XII;
92. SEE ALSO CENT. BUREAU STATISTICS (ISR.), STATISTICAL ABSTRACT OF ISRAEL 2009, NATIONAL EXPENDITURE ON HEALTH BY OPERATING SECTOR AND FINANCING SECTOR 316 (2009), available at http://www.cbs.gov.il/shnaton60/st06-03x.pdf.
93. See Howard Litwin & Eliyahu Sapir, Forgone Health Care Due to Cost Among Older Adults in European Countries and in Israel, 6 EUR. J. AGEING 167,169-171 (2009).
94. See Judy Siegel-Itzkovich, Academic Poll Shows Greater Satisfaction with Health System, JERUSALEM POST (Isr.), Mar. 16, 2010, http://www.jpost.com/ HealthAndSciTech/Health/Article.aspx?id=171157;
95. Dan Even, Survey: Private Spending on Health Care Doubled Within a Decade, HAARETZ (Isr.), Mar. 16, 2010 (Hebrew), http://www.haaretz.com/hasite/ spages/ll56821.html.
96. For the previous poll, see R. GROSS ET AL., PUBLIC OPINION ON THE LEVEL OF SERVICE AND PERFORMANCE OF THE HEALTH-CARE SYSTEM IN 2007 AND IN COMPARISON WITH PREVIOUS YEARS (2009) (Hebrew), available at http://brookdale.jdc.org.il/- Uploads/PublicationsFiles/541-09-PublicOpinionOnHealthCareREP-HEB.pdf;
97. Ran Reznick, Survey: Rising Medical Costs Forcing More Israelis To Forgo Care, HAARETZ (Isr.), May 1, 2008, http://www.haaretz.com/news/survey-rising- medicalcosts-forcing-more-israelis-to-forgo-care-1.245008.
98. See Judy Siegel-Itzkovich, Academic Poll Shows Greater Satisfaction with Health System, JERUSALEM POST (Isr.), Mar. 16, 2010, http://www.jpost.com/ HealthAndSciTech/Health/Article.aspx?id=171157. A more complex and nuanced follow up research question would be the effects of non-treatment on patients; intuition would suggest that forgoing medical treatment may have detrimental effects of individual health but we must await comprehensive research on this topic which will surely come.
99. See Joseph Carroll, Americans, Canadians, Britons Similarly Rate Their Healthcare Systems, GALLUP, Jan. 10, 2006, available at http://www.gallup.com/ poll/20821/AmericansCanadians-Britons-Similarly-Rate-Their-Healthcare-Systems. aspx.
100. The World Health Organization notes that "[t]he evidence on determinants of health shows that people who are socioeconomically disadvantaged bear the greatest burden of disease. Among determinants, income is related to an accumulation of factors that affect mortality." WHO 2004, supra note 27, at 5.
101. Id. at 6.
102. See Even, supra note 7- An official report states that on average Israel has one IVF unit per 311,363 persons - but these units are unevenly spread around the country. The five units in the Haifa region serve, on average 177,700 persons; the five units in the Tel-Aviv region serve, on average, 247,500 persons, while the two units in the South of Israel serve, on average, 532,700 persons and the two units in northern Israel serve, on average, 627,400 persons.
103. See Dan Even, Israeli Fertility Treatment Rates Continue To Rise, HAARETZ (Isr.), Mar. 24, 2010 (Hebrew), http://www.haaretz.co.il/hasite/spages/1158690. html.
104. Both tables adapted from NATIONAL HEALTH INSURANCE STATISTICS, supra note 38, at 45.
105. See Liei Kyzer, Israel Set To Become OECD's Poorest Member, HAARETZ (Isr.), Jan. 20, 2010, http://www.haaretz.com/hasen/spages/1143853.html;
106. see also Dina Kraft, Poverty in Israel: The Divide Deepens Between the Haves and Have-nots, JEWISH J., Mar. 8, 2007, available at http://www. jewishjournal.com/articles/item/poverty-in-israel-the-divide-deepens-between -the-haves-and-havenots-2007030/. In May 2010, Israel was unanimously voted into the OECD.
107. Even where such efforts were made, they were mostly rebuffed. See, e.g., Mimi Ajzenstadt, Moral Panic and Neo-Liberalism: The Case of Single Mothers on Welfare in Israel, 49 BRIT. J. CRIMINOLOGY 68, 82 (2009) (discussing government-led moral panic instigated against single mothers who complained about welfare cuts).
108. JONATHAN NITZAN & SHIMSHON BICHLER, THE GLOBAL POLITICAL ECONOMY OF ISRAEL 2 (2002) (italics in the original).
109. See JODIE T. ALLEN & MICHAEL DIMOCK, PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, A NATION OF "HAVES" AND "HAVE-NOTS?": FAR MORE AMERICANS NOW SEE THEIR COUNTRY AS SHARPLY DIVIDED ALONG ECONOMIC LINES (2007), available at http://pewresearch.org/pubs/593/haves-have-nots;
110. Lydia Saad, More Americans Say U.S. a Nation of Haves and Have-Nots, GALLUP, July 11, 2008, available at http://www.gallup.com/poll/108769/more- americans-say-us-nation-haves-havenots.aspx.
111. If that is the case - Israel seems to be on the "right" track. Cf. Tomer Zarchin, Rights Group: In West, Israel 2nd Only to U.S. in Inequality, HAARETZ (Isr.), Aug. 12, 2008, http://www.haaretz.com/hasen/spages/1044667. html.
112. See Kyzer, supra note 74 ("Although the report's conclusions are nothing new for many Israelis, the country is still at the bottom of the rankings. Every fifth Israeli is twice as poor as the average person in OECD member states. Most of the poor come from Arab and ultraorthodox communities, where poverty rises to 50 percent and 60 percent.");
113. see also OECD Policy Brief, supra note 53, at 7.
114. Gil Hoffman, PM Celebrates Israel's OECD Accession, JERUSALEM POST (Isr.), May 10, 2010, http://www.jpost.com/Business/BusinessNews/Article.aspx? id=175170.
115. For a good explanation why that may be the case, see generally DAVID NACHMIAS & DAVID H. ROSENBLOOM, BUREAUCRATIC CULTURE: CITIZENS AND ADMINISTRATORS IN ISRAEL (1978).
116. Shay Niv, Israelis' Support for Privatization Increases with Income: The Public Is Clear on Which Public Companies Should be Privatized, GLOBES ONLINE, Jan. 1, 2008.
117. On the privatization of Israeli prisons, see infra.
118. See Meet Israel's New Government - 30 Ministers, 6 Ministers Without Portfolio - NO MINISTER OF HEALTH!!!, http://www.politicalspinner.com/2009/03/ 31/meet-israels-newgovernment-30-ministers-6-ministers-without-portfolio-no- minister-of-health (Mar. 31, 2009);
119. Ran Reznick & Yair Ettinger, Failure To Appoint Health Minister Is Like Outbreak of Disease, HAARETZ (Isr.), Mar. 4, 2009, http://www.haaretz.co. il/hasen/spages/1076270.html.
120. See Dan Even, Litzman Insists: Free Dental Treatment for Children Starting Next Year, At Expense of Drugs, HAARETZ (Isr.), Nov. 13, 2009, http://www.haaretz.com/hasen/spages/1127647-html;
121. Meirav Arlosoroff, Bottom Shekel/Basket Case: Let the Health Services Committee Do its Job, HAARETZ (Isr.), Dec. 31, 2009, http://www.haaretz.com/ hasen/spages/1138691.html;
122. Dan Even & Jonathan Lis, Litzman's Dental Care Plan To Cost NIS 300m a Year, HAARETZ (Isr.), Dec. 17, 2009, http://www.haaretz.com/hasen/spages/ 1135419.html.
123. Writing of the Israeli Supreme Court under the leadership of Aharon Barak, Robert Bork described the Court as "simply the most activist, antidemocratic court in the world . . . ." ROBERT BORK, COERCING VIRTUE: THE WORLDWIDE RULE OF JUDGES 13 (2003).
124. He was followed by Richard Posner, who reviewed Barak's 2006 book THE JUDGE IN A DEMOCRACY. See Richard A. Posner, Enlightened Despot, NEW REPUBLIC, Apr. 23, 2007, at 53;
125. see also Robert Bork, Barak's Rule, 27 AZURE 125 (2007).
126. The rebuttal came from both academics and judges. See Barak Medina, Four Myths of Judicial Review: A Response to Richard Posner's Critique of Aharon Barak's Judicial Activism, 49 HARV. INT'L L.J. ONLINE 1 (2007);
127. Stephen Reinhardt, Weakening the Bill of Rights: A Victory for Terrorism, 106 MICH. L. REV. 963, 966 (2008) ("Posner ends the review with the incredible statement 'No wonder he frightens Robert Bork.' Talk of bad taste, let alone bad judgment. It would be tough to match. Bork is a bitter figure still licking his wounds from his public rejection. Barak is a giant in the law, admired throughout the world. Shame on Posner!").
128. More generally, see Thomas A. Balmer, What's a Judge To Do?, 18 YALE J.L. & HUMAN. 139 (2006) (book review).
129. Aharon Barak is arguably the most influential Israeli jurist - domestically and internationally and as both judge and academic - in the nation's history. See, e.g., Stephen Yeazell, When and How U.S. Courts Should Cite Foreign Law, 26 CONST. COMMENT 59 (2009);
130. Aharon Barak, Foreword, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16 (2002);
131. Guy Davidov, Unbound: Some Comments on Israel's JudiciallyDeveloped Labor Law, 30 COMP. LAB. L. & POL'Y J. 283, 310 (2009). Prof. Barak is currently on faculty at the IDC Herzliya.
132. Two classic examples are the Court's outlawing of the extreme interrogation measures of the General Security Services and its review of Israel's "Wall of Separation" and its forced changes to its route. See HCJ 2056/04 Beit Sourik Village Council v. Israel [2004] IsrSC 58(5) 807, available at http://elyonl.court.gov.il/files-eng/04/560/020/A28/04020560.a28. pdf;
133. HCJ 5100/94 Pub. Comm. Against Torture in Israel v. Israel, IsrSC 53(4) 817, available at http://elyonl.court.gov.il/files-eng/94/000/051/a09/94051000. a09.pdf.
134. On the Court's positive role during ongoing warfare, see Guy Seidman, Judicial Administrative Review in Times of Discontent: The Israeli Supreme Court and the Second Palestinian Uprising, 14 ISRAEL AFFAIRS 640 (2008).
135. See, e.g., Israel Doron & Tal Golan, Aging, Globalization, and the Legal Construction of "Residence:" The Case of Old-Age Pensions in Israel, 15 ELDER L.J. 1, 40 (2007) ("Much has been written in Israeli legal literature regarding the reluctance of the Supreme Court to intervene in the sphere of social rights in Israel.").
136. On the limited protection for social rights in Israel, see Aeyal M. Gross, The Constitution, Reconciliation, and Transitional Justice: Lessons from South Africa and Israel, 40 STAN. J. INT'L L. 47, 95-96 (2004).
137. See HCJ 244/00 Ass'n for Democratic Discourse v. Minister of Nat'l Infrastructure, IsrSC 66(6) 25, available at http://elyonl.court.gov.il/files- eng/03/660/003/a39/03003660.a39.pdf;
138. for analysis see Daphne Barak-Erez, Law and Politics in Israel Lands: Toward Distributive Justice, 14 ISRAEL AFFAIRS 662 (2008).
139. See HCJ 366/03 Commitment to Peace & Social Justice Soc'y v. Minister of Finance [2005] (unpublished);
140. for context see Yoram Rabin,Yuval Shany, The Case for Judicial Review over Social Rights: Israeli Perspectives, 14 ISRAEL AFFAIRS 681 (2008).
141. This power comes from Section 15 of Israel's Constitutional Basic Law. See The Knesset, Basic Law: The Judiciary, http://knesset.gov.il/laws/special/ eng/basic8-eng.htm. Such exceptional equity powers have been available to the Supreme Court since the days of the British Mandate.
142. See The 1922 Palestine Order-in-Council, Section 43, available at http://unispal.un.Org/UNISPAL.NSF/0/C7AAE196F41AA055052565F50054E656
143. Two classic examples: striking down the decision of Prime Minister Rabin not to fire a cabinet minister who was suspected (and later convicted) of criminal wrongdoings, and striking down a pardon granted by the President of the State of Israel because the medical recommendations it was based on turned out to be bogus. See HCJ 3094/93 Movement for Quality Gov't in Israel v. Israel [1993] IsrSC 47(5) 441 and
144. HCJ 706/94 Ronen v. Minister of Educ. & Culture [1999] (unpublished).
145. HCJ 3071/05 Luzon v. Israel [2008] (unpublished) (Hebrew).
146. Unfortunately, by the time the case was decided a number of the petitioners had succumbed to their illness. See Tomer Zarchin, When the High Court Decides Not To Decide, HAARETZ (Isr.), Mar. 27, 2008, http://www.haaretz. com/hasen/spages/968911.html.
147. The Court explained that the ruling was delayed because it hoped public efforts to increase the healthcare budget would make the petitions moot; this happened in part, but sadly too late for most of the petitioners. Luzon, HCJ 3071/05 at ¶¶ 3-4.
148. Luzon, HCJ 3071/05 at ¶ 5.
149. The medications in question were Avastin, Taxotere and Erbitux; by the time this case was decided, only the last medication was uncovered by the public purse. Id. ¶¶ 2-3.
150. Id. ¶ 9- President Beinisch's decision notes that patient privacy and autonomy and the absence of discrimination in access to medical treatment are part of the right to health.
151. Id.
152. see also ROSEN & SAMUEL, supra note 9, at 24-25.
153. Luzon, HCJ 3071/05 at ¶ 10. The Basic Laws form the core of Israel's constitutional structure.
154. For a useful introduction to Israeli constitutionalism see NAVOT, supra note 52.
155. Luzon, HCJ 3071/05 at ¶ 10.
156. Id.
157. The decision acknowledges other voices, who call on the Court to recognize socioeconomic rights more generously. Id.
158. Id. ¶¶ 13-15 (discussing the National Health Insurance Act, 5754-1994 and the Patients' Rights Act, 5756-1996).
159. Id. ¶ 16.
160. Which states "a patient has the right to receive proper medical treatment, both as a matter of professional standard and medical quality and as a matter of human relation." Id. ¶ 14.
161. Id. ¶ 16.
162. Luzon, HCJ 3071/05 at ¶ 16.
163. Id. ¶ 16.
164. Here she employs the term used by Justice Cheshin's in Maccabi Healthcare Services v. Minister of Finance. Id. at ¶ 16 (citing HCJ 2344/98 [2000] IsrSC 54(5) 729 at ¶¶ 35-40).
165. Id. at ¶ 17.
166. See id. at ¶ 18.
167. See id. ¶¶ 19-23.
168. Luzon, HCJ 3071/05 at ¶ 22.
169. Id.
170. Id. ¶ 27.
171. Id. ¶ 26.
172. Id. ¶ 27. In similar vein, notes Justice Naor: The complex work of assembling the basket which my colleague has discussed admits a large number of results; every solution results in sufferers. There is no optimal solution to decide upon, and there is no magic formula to weigh the competing interests. The decision not to include the desired medication in the basket, given the information known about it, does not stray beyond the range of reasonableness, no cause for our interference was found, and there is no escape from denying the petition.
173. Id. ¶ 2 (Naor, J. concurring).
174. HCJ 434/09 Davidov v. Minister of Health (unpublished; decided May 3, 2009) (Hebrew) at 143.
175. Privatization of school health services was dramatically reported as sacrificing children's health to save money, and as part of the wider privatization of children rights. See Avirama Golan, The Privatization of Children's Rights, HAARETZ (Isr.), Jan. 17, 2010, http://www.haaretz.com/hasen/ spages/H43058.html;
176. Judy Siegel-Itzkovich, School Children's Health Sacrificed To Save Money, JERUSALEM POST (Isr.), Jan. 25, 2010, http://www.jpost.com/Home/Article.aspx? id=l66608.
177. There is concern that privatization does not have clear boundaries. See Ruth Sinai, First Education, Then Health - Now Welfare Faces Privatization, HAARETZ (Isr.), Apr. 16, 2008, http://www.haaretz.com/hasen/spages/975290.html.
178. For extensive discussion of privatization in Israel see Jerusalem Ctr. for Pub. Affairs, Privatization of the Israeli Economy, http://www.jcpa.org/ jcprg7.htm (last visited May 2, 2010).
179. It is only fair to note that there is also extensive support of privatization. See, e.g., Nehemia Shtrasler, Privatization Is Good, HAARETZ (Isr.), Aug. 11, 2009, http://www.haaretz.com/hasen/spages/1106714.html.
180. They celebrate their achievement on their website. See Acad. Ctr. L. & Bus., The Privatization of Prisons, http://private.prison.clb.ac.il/ (Hebrew) (last visited May 11, 2010) ("In an international precedent, an expanded panel of Supreme Court justices ruled in favor of the Human Rights Unit of the Academic Center for Law and Business and nullified the statute that allowed the privatization of prisons in Israel.").
181. See Dan Izenberg, Court Rejects Knesset Plea To Suspend Hearing on Private Prison, JERUSALEM POST (Isr.), July 9, 2007;
182. Ruth Sinai, Court Nixes Knesset Bid To Delay Petition Against Privatizing Jails, HAARETZ (Isr.), July 8, 2007, http://www.haaretz.com/hasen/spages/ 879254.html;
183. for more detail see Coby Ben-Simhon, Correctional Facility, HAARETZ (Isr.), Feb. 11, 2010, http://www.haaretz.com/hasen/spages/1149199-html (citing petitioner's attorney as noting that "[t]he last hearing on the subject took place in July 2007, and after that things just dragged on.").
184. The cost of compensating the contractors is expected to be ca. U.S. $58 million - and the likely use of the fully built prison? A state-run prison. See Shmulik Grossman, Israel Prison Service To Take Over Private Jail, YNETNEWS (Isr.), Mar. 24, 2010, http://www.ynetnews.com/articles/0,7340,L- 3867770,00.html.
185. HCJ 2605/05 Acad. Ctr. for Law & Business, Human Rights Div. v. Minister of Finance (decided November 19, 2009, not yet published).
186. Id. 115.
187. "The question that we are required to rule on is, then, whether it can be held that the privatization of such governmental powers is illegal - even if it was carried out by force of Knesset Statutory legislation." Id.
188. Id. 1 33.
189. All the Justices wrote separate opinions, and all but one are concurring opinions, which join the President's opinion almost in full. See generally id.
190. As published on the Supreme Court's website, the decision is 148 pages long. See id.,
191. available at http://elyonl.court.gov.il/files/05/050/026/n39/05026050. n39.pdf.
192. Id. 13 (Levi, J., dissenting).
193. Id. 14 (Levi, J., dissenting).
194. Acad. Ctr. for Law & Business, Human Rights Div., HCJ 2605/05 at ¶ 4 (citing Administrative Law Professor and former Supreme Court Justice Yitzhak Zamir).
195. Id. 130.
196. Id.; Justice Levi was the lone dissenter on an eleven-justice panel that denied petitions against Israel's unilateral withdrawal from Gaza.
197. Tal Rosner, High Court Approves Compensation Law. YNETNEWS (Isr.), June 9, 2005, http://www.ynetnews.com/articles/0,7340,L-3096980.00.html.
198. He was also in dissent in the recent Court decision to open up route 443 for Palestinian travel. Tomer Zarchin & Yuval Azoulay. Supreme Court Orders IDF To Open Route 443 to Palestinians, HAARETZ (Isr.), Dec. 31, 2009, http://www.haaretz.com/hasen/spages/1138671-html.
199. He was also the lone dissenter in a seven-justice panel in Commitment to Peace (3 Social Justice Society, supra note 90.
200. See Hanna Zohar, Poverty Trap, JERUSALEM POST (Isr.), Feb. 15, 2006, http://www.jpost.com/Israel/Article.aspx?id=13414;
201. for more context see Yuval Yoaz et al., Fifteen Arrested Protesting Against Jerusalem Gay Pride Parade, HAARETZ (Isr.), June 21, 2007, http://www.haaretz.com/hasen/spages/873070.html;
202. Editorial, So What If the High Court Ruled?, HAARETZ (Isr.), Dec. 1, 2008, http://www.haaretz.com/hasen/spages/1042022.html.
203. The case received extensive and mostly favorable coverage in Israel and abroad. Scholarly attention will surely appear in due course. See, e.g., Tomer Zarchin, International Legal Precedent: No Private Prisons in Israel, HAARETZ (Isr.), Nov. 20, 2009, http://www.haaretz.com/hasen/spages/1129516.html;
204. Asher Meir, Are Private Prisons the Way To Go? Privately Run Jails Raise Serious Questions About Rights, Equal Treatment, JERUSALEM POST (Isr.), Nov. 27, 2009, at 17;
205. see also Michal Margalit, A Clear Message: The Decision on Private Prisons Is a Contractual Nightmare But a Constitutional Breakthrough, ISRAEL BUS. ARENA, NOV. 22, 2009.
206. Dov Chernichovsky, Perspective, Not "Socialized Medicine" - An Israeli View of Health Care Reform, 361 NEW ENG. J. MED. e46, e46(3) (2009) (Suggesting that "doing so would save American lives and make U.S. citizens even healthier and more prosperous than they are today,")
207. A point made in a letter to the editor of the New England Journal of Medicine. See Yair Erez, Editorial, Israeli Views of Health Care Reform, 362 NEW ENG. J. MED. E17 (2010).
208. I say this because some argue that, given its cost, the American healthcare system is under-performing. Cf. Lisa L. Dahm, Healthcare Systems and Quality of Care: Do International Measurement Standards Exist?, 20 TEMP. INT'L & COMP. L.J. 395, 414 (2006) -getting what you pay for may not be such a bad deal!