The full realization of our rights: the right to health in state constitutions.

• Author: Soohoo, Cynthia

State constitutions ... are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law--for without it, the full realization of our liberties cannot be guaranteed.

--Justice William J. Brennan (1)

h is arguable that [the] debate has been resolved, namely whether economic, social and cultural rights can be denied the status of human rights on the basis that they are not judicially enforceable--there is now too much evidence to the contrary.

--Malcolm Langford (2)

INTRODUCTION

Although the U.S. legal community has historically viewed socio-economic rights with skepticism, there is substantial popular support for these rights. Eighty-two percent of Americans strongly believe that there should be "equal access to quality public education" and seventy-two percent of Americans strongly believe that health care should be considered a human right. (3) Many Americans are surprised to hear that these rights have not been recognized as guaranteed by the U.S. Constitution, (4) but they need look no further than state constitutions to find them. All state constitutions contain provisions for public education, (5) and almost a third of state constitutions reference public health. (6) Despite inclusion in a surprising number of state constitutions, with the exception of cases grappling with state constitutional rights to education, state socio-economic rights provisions remain dramatically under-enforced. In contrast, outside of the United States, there are a growing number of cases in which courts are enforcing socio-economic rights provisions. This Article focuses on reproductive health law and policy as an area in which state governments have both failed to affirmatively promote the right to health and improperly imposed barriers to prevent women from accessing reproductive health care, both potentially in violation of their own state constitutional obligations. Further, it considers how courts seeking to enforce right-to-health provisions in state constitutions could benefit from examining the comparative experiences of state courts and the high courts of other countries that have enforced similar socio-economic rights provisions.

The failure of state courts to enforce socio-economic rights provisions can be traced a reluctance to enforce state constitutional rights where there is no clear federal analogue. State courts have also expressed concern that enforcement of socio-economic rights would improperly entangle courts in political questions that are better left to the political branches. The prioritization of civil and political rights (which generally coincide with our federal constitutional rights) over socio-economic rights and the perception that socio-economic rights are unenforceable reflect broader historical attitudes about socio-economic rights.

Despite full recognition of socio-economic rights in the Universal Declaration of Human Rights in 1948, (7) the "post-World War II human rights architecture gave short shrift" to their enforcement. (8) Legal scholars and commentators associated "civil and political" rights with restraints on government action and "socio-economic" rights with prescriptions for government action. (9) Based on this distinction, civil and political rights were deemed a proper subject for judicial intervention, and socio-economic rights were viewed as unenforceable. (10) Internationally, however, this perception of socio-economic rights is rapidly changing.

Over the past two decades, there has been a dramatic increase in socio-economic rights cases around the world. (11) These cases have begun to establish a methodology for enforcing socio-economic rights. Courts have recognized that governments have a negative obligation to respect socio-economic rights and have developed criteria for determining whether governments are fulfilling affirmative duties to progressively realize rights. (12) Interpreting a newly minted post-apartheid constitution that explicitly and unequivocally endorses socio-economic rights, (13) the South African Constitutional Court has emerged as a leader in this developing jurisprudence. (14) Its cases address many of the conceptual criticisms that have plagued socio-economic rights enforcement, including concerns about separation of powers, institutional competence and judicial enforcement. (15)

In addition to the conceptual challenge of changing attitudes about socio-economic rights, state courts seeking to enforce these provisions face a practical challenge of developing the appropriate standard of judicial review. It is common practice for state courts to look to federal courts for guidance in enforcing state constitutional rights. (16) However, the lack of socio-economic rights provisions in the federal Constitution leaves state courts with the choice of adopting the federal rational basis review standard, declining to enforce the socio-economic provisions, or striking out on their own. Given the textual differences between the state and federal Constitutions, we argue that developing distinct state socio-economic rights jurisprudence is the most appropriate choice.

State constitutions are very different from the federal Constitution. They have different histories and framers and grant a broader scope of power to state governments. State constitutions often reflect different, more local values than the federal Constitution and may have been influenced by different political ideas when they were drafted and amended. Although our contemporary understanding of the federal Constitution has evolved over time, the U.S. Constitution is the oldest federal constitution in existence. (17) Dating back to 1787, it was written long before the progressive social movements of the late nineteenth and early twentieth centuries, as well as the international human rights movement in the 1940s. While some state constitutions predate the federal Constitution, others were drafted as late as 1968, and many have been amended multiple times. (18) Some states even drafted their constitutions in the shadow of the Universal Declaration of Human Rights and looked to the declaration for guidance and inspiration. (19)

Given these differences, the explicit inclusion of socio-economic rights in some state constitutions, and the lack of federal analogue for these rights, state courts interpreting these types of provisions need to look beyond federal models for enforcing state constitutional rights. Some state courts have made significant progress in this area, particularly in the enforcement of state right-to-education provisions. However, state courts struggling to interpret and enforce these provisions could find the burgeoning global jurisprudence concerning enforcement of socio-economic rights instructive.

This Article is divided into four parts. Part I looks at the historic division between civil and political and socio-economic rights and the criticisms of socio-economic rights that have led some legal scholars to declare them unenforceable. It considers more recent scholarship suggesting that all rights have negative and positive aspects, and looks to international human rights law, which implicitly recognizes the negative and positive aspects of all rights and conceptualizes them in a different and perhaps more helpful way. Rather than categorizing rights as positive or negative, human rights law recognizes that all rights impose three categories of obligations on governments--the obligations to protect, respect and ensure. (20) Part I also challenges claims that judicial enforcement of socio-economic rights is improper because courts do not have the political legitimacy or the institutional competence to engage in "policy making." These criticisms reflect a misplaced skepticism about socio-economic rights and an assumption that judicial enforcement will always require the court to wade deep into policy making. Further, such criticism ignores the potential for judicial enforcement of negative obligations, as well as the development of a standard of review that incorporates appropriate deference to the political branches and allows for dialogue with courts. In the U.S. context in particular, these criticisms fail to account for the palpable differences between state and federal constitutions and courts.

Part II reviews the recent socio-economic rights cases in South Africa to better understand how the South African Constitutional Court conceptualizes and enforces these rights. South Africa has recognized that socio-economic rights consist of a negative obligation to be free from government deprivations of, or undue interference with, socio-economic rights, as well as a positive obligation to ensure fundamental rights. The affirmative obligation does not create individual enforceable rights, but requires that the government develop a reasonable policy to meet societal needs. This obligation is subject to the limits of reasonableness and available resources, and it may be progressively realized. The Court's decisions reflect a careful balancing of pragmatic concerns about institutional competency, separation of powers, and the ability to enforce judicial orders with the Court's responsibility to ensure that the political branches meaningfully implement their constitutional duty to respect, protect, and ensure socio-economic rights.

In contrast, some state courts in the United States have declined to enforce unique constitutional rights, holding that socio-economic rights provisions are unenforceable and that such issues are better left to the legislative branch. Others have actively wrestled with socio-economic rights. Part III discusses the differences between state constitutions and the U.S. Constitution and the ways in which those constitutions can be...