Judicial Interventions in Health Policy: Epistemic Competence and the Courts

A standard claim in health policy is that effective health intervention should be based on the best policy evidence available. This poses important challenges in terms of production of evidence on health interventions at both individual and population level. It also poses an important challenge in terms of integrating research findings and evidence into the policy process, ensuring that relevant evidence is appropriately processed and utilized by policymakers at different levels throughout of health policy design and implementation. The policy literature often refers to policy-makers as a general type, without adequately discriminating between policy-makers as diverse as legislators, bureaucrats and administrators, committee specialists, experts, lobbyists, and judges. All of these policymakers deal with the evidentiary basis of policy prescriptions, but each has a distinct set of tools at their disposal and must overcome specific constraints in translating the results of scientific research into effective health intervention. The judiciary is an example of a key policy actor that is involved in deciding health policy, increasingly intervening in health policymaking through a variety of judicial mechanisms, yet the precise extent of their involvement remains controversial. This paper investigates the epistemic competence of judicial decision-making with respect to heath policy interventions. I examine recent advances in social epistemology to develop insights on the institutional conditions for epistemic competence. I then relate these insights back to the specific case of judicial decision-making and the judicial process in general, with specific focus to examples from health law and policy. The paper aims to outline positive reasons for accommodating judicial reasoning the resolution of public health controversies, examine the factors that affect the epistemic competence of the judicial system in relation to the evaluation of health facts and evidence, and finally discuss several recommendations for making judicial intervention more epistemically competent in relation to health policy and public health.