The law to limit the reasonableness clause does not pose a threat to public health in Israel, Health Minister Moshe Arbel (Shas) wrote in The Lancet peer-reviewed medical journal. His article was published over the weekend in response to an August article that asserted the opposite.
The August paper said the amendment to the Basic Law: Judiciary would weaken the “Health in All Policies” approach, which takes into account public health in decisions made for the public. The amendment could potentially lead to “unchecked decisions without consideration of health implications,” according to lead writer Shelly Kamin-Friedman, a specialist in medical law and public-health law, and her co-writers.
They cited various cases over the past few years in which the High Court of Justice’s intervention did or could improve public health, such as the court overruling the Finance Ministry’s decision not to raise taxes on tobacco in 2018. They also listed two more recent cases: the repealing of an extra tax on sweetened drinks and Shas leader Arye Deri’s food-stamp plan, which has been accused of being discriminatory in favor of haredi (ultra-Orthodox) families.
Arbel disputed this claim, saying the reasonableness clause is a political and legal matter and does not risk harming public health.
Health minister rejects worrying report on Israeli public health
The law to limit the reasonableness clause would not have affected the outcomes of the cases listed by Kamin-Friedman in which the High Court ruled to strike down decisions that had potential to damage public health, he wrote, adding that in at least two of these cases, certain ministries had agreed with the petitioners.
Arbel accused the High Court of being “overly activist,” citing its decision to disqualify Deri from being health and interior minister earlier this year. This decision was made despite Deri being “the most experienced health minister in many years” and having “harnessed his influence to achieve unprecedented and needed additional budgets and reforms to the healthcare system in Israel,” he wrote.
The ruling demonstrated the judiciary’s lack of “interests of the healthcare system involved in such an important decision,” he added.
Arbel said he respected the writers’ right to their opinions, but his duty was to assure adequate healthcare and to advance the Health in All Policies approach.
“I am certain that the outstanding Israeli healthcare system will remain so in the foreseeable future, thanks to the excellent medical professionals, doctors, nurses, and the professional leadership of the Health Ministry’s administration and management,” Arbel wrote.
The original paper’s writers thank Arbel for his response on Tuesday but said he had misunderstood the risks.
“Health is a ‘positive’ right that requires operative decisions that in many cases are made by politicians,” they wrote. “These decisions have a decisive influence on public health like the criteria for the food stamps or canceling the tax on sweetened drinks. These are only some examples of decisions made by ministers.”
As such, legislation and understanding the social and political processes are not to be separated from the issue of public health, they wrote.
“We are not comforted regarding the harm to protecting public health,” they added. “We demonstrated the importance of reasonableness and the need sometimes for judicial aid to protect public health in the past, present, and future.
“The law to limit the reasonableness clause critically harms the right to health for every Israeli as evidenced by the attorney-general’s response to the government and in the Medical Association’s petition as supported by international experts and organizations.”