Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
- Administrative Court
- Constitutional Court
- State Court
Type of jurisdiction
Further areas addressed
- Public health and access to healthcare (not Covid-related diseases)
- Healthcare management (Covid related, excluding vaccination)
Outcome of the decision
To break the coronavirus chain of infection, the Israeli government decided to open test complexes and mobile systems across the country. The petitioner is the Adalah organization, which attempts to promote the rights of the Arab minority in Israel.
The petitioner claimed that the government discriminate against the Bedouin population in the Negev because of how the ministry of health, and other government officials, decided to deploy the test complexes and operate the mobile test systems across the country. In their view, the government must make corona tests equally accessible and establish permanent test complexes on the roads near the Bedouin localities.
The court decided to reject the petition. The eligibility to be tested for coronavirus is equal for each person and therefore there is no discrimination in connection with it. In particular, the petitioner's claim of discrimination is reduced to transportation difficulties and its cost as a factor that reduces access to testing. However, this argument is entirely in the logistical dimension that is located at the core of the professional judgment of the state in which the court does not intervene.
Facts of the case
The government decided to open coronavirus testing complexes and mobile systems across the country to improve the ability to locate patients as soon as possible and thus break the coronavirus chain of infection. These complexes are accessible to every resident of the country when s/he meets the same clinical criteria as those in the rest of the world. Such criteria include a body temperature above 38 degrees Celsius, severe cough or respiratory distress, and contact with a verified corona patient within 14 days which are counted from the date of the last contact.
The petitioner claimed that the government discriminates against the Bedouin population in the Negev because of how the ministry of health, and other government officials, decided to deploy the testing complexes and operate the mobile test systems across the country. In their view, the government must make corona tests equally accessible and therefore establish and operate permanent testing complexes on roads 25, 31, 40, and 80, that are located near the Bedouin localities. Additionally, the government needs to take information measures and other measures specified in their petition.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
In rejecting the petition, the Court (per Justices A. Stein, I. Amit and A. Baron concurring) held that stopping the spread of the coronavirus involves a coordinated and complex effort of allocating resources and logistical moves. The primary purpose of this effort is to flatten the infection rate curve. For this purpose, the government uses medical means as well as epidemiological and statistical models based on the "Law of Large Numbers".
In this context, an effort is made to efficiently allocate the medical, logistical, and human resources available to the state. The testing complexes established by the state work to increase the number of subjects whose testing is required according to the clinical criteria established. This is done by using the same inputs of medical equipment and laboratories and the same professional human resources to reduce the prices of the tests, increase their number, maximize their benefit, and minimize the exposure of medical staff and other professionals to the virus.
Discrimination means giving different treatment to people for reasons that are not relevant. Discrimination doesn't mean inequality in the technical sense. According to that, the members of the Bedouin population, who meet the clinical criteria, don't receive a different number of corona tests per person compared to the amount provided to the rest of the populations in the country. Therefore, the Bedouin population is not discriminated against by the government in this aspect.
Even if there is discrimination expressed in transportation difficulties and its cost as a factor that reduces the Bedouin population's access to corona tests, the transportation cost is negligible compared to the benefit. The size of the benefit in the form of the coronavirus tests that the state provides to all its residents reduces the resentment regarding the cost of transportation and drops the ground beneath the claim of discrimination. In addition, those with symptoms who have difficulty reaching the testing complexes are entitled to receive the services of the mobile systems provided anywhere in the country.
Even if there are more effective ways to increase the access of the Bedouin population in the Negev to corona examinations, compared to those chosen by the state, these claims are within the professional discretion of the state where the court does not intervene.
Justice I. Amit adds that given the lack of clarity regarding the resources currently available to the state regarding the tests, the court will not intervene in the manner of allocating the resources as requested by the petitioners.
Conclusions of the deciding body
The Court rejected the petition.
Eligibility for coronavirus tests is the same eligibility for each person and there is no discrimination to the Bedouin population in connection with it. Alternatively, even if there is discrimination in the transport sense, the benefit outweighs the cost in this case. In addition, the claims regarding the existence of more efficient ways to increase the accessibility to corona testing are within the professional discretion of the state where the court does not intervene.
Implementation of the ruling
As mentioned above, the court rejected the petition. The deployment of the test complexes and mobile systems across the country remains at the government’s discretion.
Fundamental Right(s) involved
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to equality
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health (public) v. access to health services
- Health v. equality
General principle applied
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The test for equality: is there different treatment to people for reasons that are not relevant. The proportionality of the discrimination of the Bedouin populations in the transport sense is justified in terms of cost versus benefit.
There is no reference to decisions of any supranational Courts or national courts of other States.
Impact on Legislation/Policy
There is no change in legislation or governmental policies because of this decision.
Impact on national case law
It seems that the High Court approach regarding cases about access to corona tests among the Bedouin and Arab populations expresses restraint while allowing the state to organize. This approach is also reflected in another rejected petition filed by residents of Kfar Akev and the Shuafat refugee camp regarding improving their accessibility to corona tests.
Instance: 1s Instance, Appellate on Fact and Law, Supreme Court - Cassation (Review), Constitutional Review