Positive health: the human right to health care under the New York State Constitution.

• Jurisdiction: United States
• Date: 01 April 2008
• Author: Jenkins, Alan

1. INTRODUCTION

   In his first State of the State address, former New York Governor Eliot Spitzer recognized the urgent need to "reform our health care system." (1) He explained that "when 2.8 million New Yorkers can't afford health insurance, that affects not only them and their families, it affects everyone," and promised to take steps to make health care more affordable and accessible to all New Yorkers. (2)

   As the governor recognized, access to quality health care is essential to realizing our full potential as individuals, families, communities, and as a society. Our children learn more effectively when they come to school healthy and strong. Our workforce is more productive and our economy more robust when workers and their families receive quality health care. Affordability of care promotes not only good health, but also economic security. In addition, the affordability and quality of the health care that all of us receive improves drastically when our system prevents and treats health problems early and through regular, rather than emergency, care. (3)

   Conversely, the entire state suffers when people and whole communities are denied meaningful access to care. Those ill effects are exacerbated when some communities are repeatedly burdened with multiple barriers to quality care, and when the racial or economic make-up of communities plays a role in determining who has access to care. (4)

   Equal access to quality health care for all New Yorkers is a top priority for the State's residents. (5) An overwhelming majority of New Yorkers believe that everyone in the State has a right to health care, (6) and hold federal, state, and local government responsible for fulfilling that right. (7)

   Despite these views, many New York communities lack access to basic health care services. Neighborhoods with the greatest health care needs, disproportionately low-income and communities of color, often have the fewest health care resources. (8) These conditions are dangerous for New Yorkers. They threaten our lives, stymie our economic growth, and violate the very principle of American opportunity: that everyone should have a fair chance to achieve his or her potential. (9)

   In this Article, we argue that the New York State Constitution creates a legal right to equal access to quality health care for all New Yorkers. (10) As we set forth below, both the historical context and the legislative history of the State Constitution support this interpretation.

   In Part II, we look at the legislative history and historical context of the 1938 New York Constitutional Convention. We also outline the dimensions of the right to health care required under the text and history of the State Constitution, as informed by parallel provisions, international and federal law, as well as social science research. In Part III, we provide an overview of additional laws that guarantee equal access to quality health care, focusing on racial, linguistic, socioeconomic, and geographic equity. Considered together with the New York State Constitution, these laws establish that all New Yorkers have a legal right to equal access to quality health care. The State must ensure that all New Yorkers have access to health care, remedying the absolute deprivations of health care that many low-income New York communities currently face, and ensuring that health care services are equitably distributed to meet health care needs.

   In Part IV, we demonstrate that New York State is currently failing to live up to its obligations to protect and promote New Yorkers' health, and in Part V we suggest a series of remedies that can help ensure that the State fulfills its obligations.

   At a time when New York State and the nation as a whole are engaged in extended debate about the future of our health care system, (11) it is especially important to acknowledge the constitutional and human right to health care that all New Yorkers hold, and that must be a part of the reforms that nearly all agree are greatly needed.

2. THE RIGHT TO HEALTH CARE UNDER THE NEW YORK STATE CONSTITUTION

   Since 1977, when U.S. Supreme Court Justice William J. Brennan called on state courts to take a more active role in protecting human rights, (12) much has been written about the importance of state constitutions and courts in the face of federal courts' increasingly restrictive interpretation of U.S. constitutional provisions. (13) The constitutions of states around the country contain substantive provisions requiring government to ensure their residents' education, shelter, and health. (14) Federal courts have generally declined to recognize these guarantees within the U.S. Constitution. (15)

   New York's Constitution is particularly protective of these rights. Among other guarantees, two provisions, the public health and the aid to the needy provisions, explicitly recognize the State's obligations to aid the poor and protect and promote New Yorkers' health. (16) Specifically, the public health provision of the constitution, article XVII, section 3, states:

   The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine. (17) Article XVII, section 1 of the New York State Constitution, the aid to the needy provision, mandates: "The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature from time to time may determine." (18)

   Article XVII, known as the "Social Welfare Article," was added to the New York Constitution in the midst of the Great Depression. (19) At the 1938 constitutional convention, delegates drafted a number of provisions addressing public health, social security, insurance, and aid to the needy. (20) Delegates bundled these provisions together as a social welfare amendment to the constitution and presented them to the public for a vote. (21) Voters overwhelmingly approved the amendment by a vote of 1,902,075 to 943,296. (22) The amendment carried the largest total vote of all the 1938 amendments to the constitution. (23) Every major party endorsed the social welfare amendment, (24) as did most newspapers and influential politicians of the day. (25) Once ratified, the social welfare amendment vested in the state government an affirmative obligation to provide for the health of its residents. (26)

   1. The Public Health Provision

      The text of the public health provision makes clear that it covers both the "protection" and the "promotion" of health, that it covers all "inhabitants" of the State, and that providing for such protection and promotion by state and municipal governments is mandatory. (27) The provision gives the legislature discretion in crafting a system that will effectively fulfill those goals. (28)

      Taken together, the text, structure, purpose, and history of the provision make clear that it includes a guarantee of adequate health care as essential to safeguarding the public's health.

      1. Health and Health Care in the 1930s: Historical Context of Article XVII

         The legislative history of the social welfare article makes clear that the delegates to the convention drafted the provision to address the health needs of that era. (29) These included both broad public health concerns like sanitation, hygiene, and combating epidemics, and health care in the form of medical services. (30) At the time of the 1938 New York constitutional convention, the science of medical care had made significant advances, but thousands of people in New York and millions across the country could not afford medical care and were not getting the treatment they needed. (31) The public, policymakers, and health care providers were clamoring for health care reform. (32) The drafters of the state constitutional amendments recognized that this was a problem they had to tackle. (33)

         Many of the concerns about public health of the 1930s were similar to those of today. For example, a survey prepared for the New York City Welfare Council during the winter of 1930-31, described "widespread deficiencies in diet [and] postponement of prophylactic measures and of treatment for incipient ailments." (34) The results of the country's first comprehensive survey of the economics of medical practice revealed that "'[m]any persons do not receive service which is adequate either in quantity or quality and the costs of service are inequitably distributed.'" (35)

         The study made clear that "[t]he common belief that the poor receive necessary medical care is not supported." (36) Based on "variations in the death and sickness rates in different sections of the country and among different economic groups," the survey concluded "that there is a close relation between income and health." (37) Specifically, the "'two or three lowest income groups receive far less of nearly every service--care from physicians and dentists, hospitalization, eye care, maternity care and X-ray and laboratory service--than the groups with highest incomes,'" despite similar rates of sickness among poorer and wealthier families. (38) Other studies cited by the Constitutional Committee revealed that "[f]our out of ten people who are sick receive no medical care.'" (39)

         These problems were widespread in the Unites States. Large areas of the country, predominantly poor areas with significant health needs, were facing a dire shortage of hospital beds. (40) As one Chicago resident testified at the 1938 National Health Conference held by the President's Interdepartmental Committee to Coordinate Health and Welfare Activities, the shortage of hospital beds and health care facilities was "disgraceful" and Chicago's health was in "an emergency situation." (41) In New York, hospitals with indigent patients were finding "an ever-mounting...