Constitutional Issues related to Regional Depopulation and Local Healthcare - with focus on Guaranteeing the Right to Health

In 2020, Korea entered a demographic phase known as the “dead cross”, in which the number of deaths exceeded the annual number of births. Along with the decrease in the population of the entire country, regional Depopulation is intensifying due to the continued concentration of the population in the metropolitan area. As the number of people living or staying in the region decreases, essential local infrastructure and services- such as neighborhood facilities- are also being reduced. In particular, when the population of Myeon(a township-level administrative district) decreases to less than 3,000, significant problems begin to emerge in the local healthcare system. Most of the medical facilities in Korea are private medical facilities, and in the case of private medical facilities, they naturally go through the procedure of closure in areas that are not profitable. Consequently, the phenomenon of regional depopulation directly impacts the right to health of residents who continue to live or stay in these ares. Although the Korean Constitution does not explicitly stipulate the right to health, the Constitutional Court recognizes it as a constitutional right through precedents. Health is understood as “a prerequisite for an individual to live with human dignity and a fundamental condition for the pursuit of happiness.” It is a natural premise of other basic rights, although not specified by the Constitution in that it is a condition and ability to lead daily life. In this context, the right to life derived from Article 10 of the Constitution and the right to health care under Article 36 (3) of the Constitution, provide the legal basis for directly deriving the constitutional right to health. Currently, there are no tertiary medical institutions, such as large general hospitals, in areas with declining populations. The number of acute care hospital beds in these regions is also blower than national average. Even when medical facilities are accessible, it is difficult to treat because there are no emergency medical doctors, pediatricians, or trauma surgeons. While the number of public health doctors is not negligible, but the number of public health doctors has decreased. As of the end of May 2023, apporximately 30% of these areas had no public health doctor assigned at all. The imbalance of medical services occurring in depopulated areas leads to an infringement of the right to health of residents living or staying in the area. The important point of health care is that everyone should have access to medical facilities and treatments without discrimination in any form. However, most medical institutions are concentrated in the metropolitan area, and compared with this, residents in depopulation regions are not guaranteed access to essential, let alon high-quality, medical services. While it may be difficult to argue that the right to health is violated solely due to regional differences in the number of accessible hospitals, legislative polices aimed at guaranteeing this right often rely on broad governmental discretion. As a result, the state may not be legally compelled to expand medical infrastructure in underserved areas. Even though systems such as national health insurance exist, if residents cannot access nearby hospitals or are unable to be transferred due to a shortage of emergency beds, it raises serious questions about whether a minimum standard of health is truly guaranteed. The lack of medical facilities and personnel in these areas is not a temporary problem, and when such conditions lead to ongoing and substantial violations of the right to health, it becomes difficult to justify wide legislative discretion. The state cannot evade its responsibility to secure the necessary resources and implement concrete policies to realize the right to health. This includes ensuring non-discriminatory access to medical services and healthcare facilities for all people.