Monday, May 12, 2008
A first-year law student brought a giant pharmaceutical to its knees. But will her victory for South Africa's AIDS sufferers deprive the world of new medicines?
May 1, 2001 | For Amy Kapczynski, the turning point came in Durban. When she arrived in the South African city for the World AIDS Conference last July, she was greeted by 5,000 demonstrators demanding access to medications that could prolong or save their lives. Blacks and whites walked side by side -- an image of how in a country once separated by apartheid both races have come together to fight a common enemy. They marched behind a banner emblazoned with the words that have come to symbolize the struggle against the deadly disease in South Africa: "Pity" crossed out, with "Medication For All" printed beneath.
"It was amazing, there was incredible energy," the 26-year-old law student recalls. "South Africa is such an astounding place -- you can still feel the living history of the revolution taking place in their country. The people are incredibly politically literate, active and motivated." The activists' slogan, with its appeal to justice and rejection of pity, fired Kapczynski's imagination. "It's not about feeling bad and doing things out of guilt," she says. "People have a right to medication. They have a right to dignity and to have their own lives and the highest attainable standard of health."
Kapczynski attended a shadow conference for women that brought together participants from the United States, Europe and South Africa. It was at those meetings, Kapczynski says, that she was viscerally jolted into an awareness of the gulf that separates the reality of AIDS in the industrialized world from that in impoverished countries like South Africa, where the vast majority of people live in abject poverty. As the panel discussed the side effects of taking dozens of anti-retroviral drugs each day, it suddenly dawned on her that many of the women listening to the discussion didn't have access to any drugs whatsoever. HIV-positive participants from Germany and the United States might suffer nausea and fatigue, but most of them were going to live for years or decades. Those from South Africa were going to die, some of them very soon. "The divide was jarring and disturbing," she says. "It was an ethically and emotionally impossible feeling. I just had the feeling that this can't continue. It's unjust."
The crowning irony of the whole situation, Kapczynski realized, was that the few South African women at the meeting who were actually receiving treatment were on clinical trials that had been set up by pharmaceutical companies -- the very companies that were trying to sue the South African government to keep it from importing or producing cheap generic versions of patented drugs.
Kapczynski returned from the conference to start her first year at Yale Law School. But along with plunging into textbooks on torts with the rest of her classmates, she took on a bigger project. Working with the Nobel Prize-winning organization Doctors Without Borders, she achieved something that had never been achieved before: She helped launch a campaign that ultimately led Yale and Bristol-Myers Squibb, one of the largest pharmaceutical companies in the world, to pledge not to enforce the patent on d4T -- a crucial drug in HIV treatment, sold commercially under the brand name Zerit -- in South Africa.
It was a monumental victory: No pharmaceutical company had ever relinquished a patent on an AIDS medicine. Even more crucial, perhaps, was the effect on other pharmaceuticals. The 39 leading companies, worried at the prospect of losing control of their patents -- and terrified at the possibility that providing drugs free or almost free to Third World countries would eventually undercut drug prices in developed nations -- had filed a lawsuit against the South African government, seeking to force the government to overturn an unenforced 1997 law allowing the public health ministry to override drug patents in the event of a national health emergency. Since passing the law, the South African government has never declared such a state of emergency. But even as it pressed the lawsuit, Big Pharm, as the pharmaceutical industry is known, knew that public opinion could turn harshly against it if it was seen as preventing access to lifesaving drugs in the name of corporate greed.
That, in fact, is exactly what happened. Battered by criticism, on April 19 the pharmaceuticals announced they were dropping their lawsuit against South Africa. Yale and Bristol-Myers Squibb's decision was critical in turning the public relations tide. With a major pharmaceutical having accepted the principle that normal corporate behavior should not be maintained in the face of the devastating scale of the AIDS epidemic -- more than 4.7 million people are HIV positive in South Africa alone -- it had simply become too damaging for the other companies to continue their legal battle.
The battle over d4t is just one skirmish in what is becoming a monumental showdown over the future of global healthcare. On one side stand activists and critics who say that giant pharmaceutical companies have a moral responsibility to provide their medicines at reasonable prices, not just in the Third World but in developed nations. Their opponents, like conservative journalist Andrew Sullivan, argue that these critics are really anti-capitalists in humanitarian garb, and that the profits the pharmaceutical companies make are needed to finance the costly R&D that brings new drugs into the market. It's a confrontation whose emotional stakes are raised by the AIDS nightmare, which has killed 22 million people in Africa alone.
Get Salon in your mailbox!