The Rise of the Swiss Regulatory Healthcare State: On Preserving the Just in the Quest for the Better (or Less Expensive?)

Abstract

Political theories of the modern state describe a rise of the regulatory healthcare state, balancing the imperatives of cost control and quality assurance and welfare norms such as solidarity. This paper analyses the unique case of Switzerland, where the rise of the regulatory healthcare state occurred late and incompletely, with the adoption of the Federal Health Insurance Law in 1994. The Swiss federal state pursues the social objective of universal access to healthcare through social health insurance regulation. This paper demonstrates that economic efficiency has not been the primary goal of healthcare coverage within the Swiss regulatory healthcare state despite rising costs. As another exceptional feature, Switzerland has diverged from the traditional path of judicial behavior in the regulatory state. This paper critically dissects how the Swiss Federal Court has become a crucial actor, imposing limits on access to healthcare and shaping decision-making criteria for social regulation, such as cost-benefit and cost-impact analysis. Through this judicialization of limit-setting, the judiciary engages in an ongoing constitutional dialogue on the limits of the regulatory welfare state and its sustainability for the future.