Positive Health: The Human Right to Health Care under the New York State Constitution

By Jenkins, Alan; Ardalan, Sabrineh | Fordham Urban Law Journal, April 2008 | Go to article overview

Positive Health: The Human Right to Health Care under the New York State Constitution


Jenkins, Alan, Ardalan, Sabrineh, Fordham Urban Law Journal


I. 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. …

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