Ortiz, Ana María v. Ministerio de Salud de la Nación et. al.

O. 584. XXXVIII.
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The plaintiff filed a guarantee of protection of individual constitutional rights (amparo protection) with the Federal First Instance Court against the Province of Buenos Aires and the State for them to provide comprehensive coverage for her sclerosis multiple treatment because she didn’t have the economic resources to afford the medicine. The State provided her 3 boxes of medicines in August 2001 but they lasted until October 2001 and didn’t provide her with more medicines. According to the plaintiff, the Province of Buenos Aires was responsible for the omission of recognizing the multiple sclerosis as a disease in the Directory of Medicines Office [Dirección Política del Medicamento]. The plaintiff based her rights in article 42 of the National Constitution, National Law 23.661 that created the National Social Security System, Resolution 939/2000 of the Ministry of Health and laws 24.901 and 22.431 and in the Constitution of the Province of Buenos Aires. It also filed a precautionary measure for the respondents to provide the medicines as soon as possible because without her medicines her condition would worsen and her right to health would be affected.

The Federal First Instance Court declared that was not competent to solve the amparo protection but granted the precautionary measure and condemned the respondents to provide comprehensive coverage for the corresponding medicine for the treatment of the plaintiff. Both parties filed an appeal to the Federal Court of Appeal which also declared that was not competent to solve the amparo protection and confirmed the previous judgement. The Federal Court of Appeal sent the case to the Supreme Court of Justice for understanding that it was a original jurisdiction case.

 

The Supreme Court of Justice held that the case "Orlando, Susana Beatriz c/ Buenos Aires, Provincia de y otros" was analogous to this case so the same solution should apply to this case and admitted the amparo protection. The analogous case held that under international human rights treaties ratified by Argentina the State had the obligation to develop the corresponding measures to guarantee the rights to life and health, extending that obligation to other state departments such as the Province of Buenos Aires. This obligation included the duty to promote and facilitate the population's access to medicine. Therefore denying the plaintiff access to essential medication entailed a risk to hear life and health. As her disease was not included in the Directory of Medicines Office of the Province of Buenos Aires [Dirección Política del Medicamento] and therefore not including the provision of her medicine in the local authorities constituted a discrimination. This is so because she was also disabled as a result of her disease and disabled people have a legal regime that guarantee medical services and social security for those who lack economic resources. Excluding her was treating her differently from disabled people who lack economic resources that have this legal regime.

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