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The Human Right to Health Care Under the New York State Constitution

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The Human Right to Health Care Under the New York State Constitution Fordham Urban Law Journal Volume 35 Number 3 Article 2 2008 Positive Health: The Human Right to Health Care Under the New York State Constitution Alan Jenkins The Opportunity Agenda Sabrineh Ardalan Third Circuit Court of Appeals Follow this and additional works at: https://ir.lawnet.fordham.edu/ulj Part of the Law Commons Recommended Citation Alan Jenkins and Sabrineh Ardalan, Positive Health: The Human Right to Health Care Under the New York State Constitution, 35 Fordham Urb. L.J. 479 (2008). Available at: https://ir.lawnet.fordham.edu/ulj/vol35/iss3/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. POSITIVE HEALTH: THE HUMAN RIGHT TO HEALTH CARE UNDER THE NEW YORK STATE CONSTITUTION Alan Jenkins* & Sabrineh Ardalan** I. INTRODUCTION In his first State of the State address, former New York Gover- nor 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 es- sential to realizing our full potential as individuals, families, com- munities, 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 pro- motes not only good health, but also economic security. In addi- tion, the affordability and quality of the health care that all of us * Executive Director, The Opportunity Agenda; B.A., Harvard College, 1985; J.D., Harvard Law School, 1989. Special thanks to Brian Smedley, Betty Alvarez, and Kevin Hsu for their contributions to this Article. Thanks also to our readers, Cathe- rine Albisa of the National Economic and Social Rights Initiative, Professor Martha F. Davis at Northeastern University School of Law, Professor Nan D. Hunter at Brooklyn Law School, Professor Catherine Powell at Fordham Law School, and Cindy Soohoo at the Bringing Human Rights Home Project, Human Rights Institute, Columbia Law School. A team of dedicated interns-including Melissa Spiller, American University; Maura Prendiville, Boalt Hall School of Law, University of Cal- ifornia, Berkeley; Chai Park, Notre Dame Law School; Molly Rogers, Fordham Law School; Allie Nudelman, New York University; Ron Towns, Columbia University; Khadine Bennett, Washington College of Law, American University; and Marques Matthews, Columbia Law School-provided invaluable research assistance, as did the students of Professor Martha T. McCluskey at Buffalo Law School. In addition we are grateful to our partners in New York City: Bronx Health Reach, Brooklyn Per- inatal Network, Commission on the Public's Health System, New York Immigration Coalition, and New York Lawyers for the Public Interest. ** Law Clerk to Hon. Michael A. Chagares, Third Circuit Court of Appeals; for- merly Associate Counsel, The Opportunity Agenda; B.A., Yale College, 1997; J.D., Harvard Law School, 2002. The views expressed in this Article in no way reflect the positions of Judge Chagares. 1. Press Release, Governor Eliot Spitzer, Governor Spitzer Delivers First State of the State Address (Jan. 3, 2007), http://www.ny.gov/governor/press/0103073.html. 2. Id. 479 480 FORDHAM URB. L.J. [Vol. XXXV receive improves drastically when our system prevents and treats health problems early and through regular, rather than emergency, 3 care. Conversely, the entire state suffers when people and whole com- munities 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 eco- nomic 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. 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 respon- sible 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 condi- 3. See, e.g., Susan Adler Channick, Come the Revolution: Are We Finally Ready for Universal Health Insurance?,39 CAL. W. L. REV. 303, 311-12 (2003); Sara Rosen- baum et al., Symposium Articles: Foreword: National Health Reform and America's Uninsured, 32 J.L. MED. & ETHICS 386 (2004); Alicia Ely Yamin, Not Just A Tragedy: Access to Medications As A Right under InternationalLaw, 21 B.U. INT'L L.J. 325, 341-42 (2003); The Opportunity Agenda, Health Care and Opportunity, http://www. opportunityagenda.org/site/C.MWL5KKNOLvH/b.1428199/k.47C2/HealthcareFact_ Sheet.htm (last visited Mar. 28, 2008). 4. See generally INST. OF MEDICINE, CARE WITHOUT COVERAGE: Too LITTLE, Too LATE (2002), available at http://www.nap.edu/catalog.php?recordid=10367#toc [hereinafter CARE WITHOUT COVERAGE]; INST. OF MEDICINE, COVERAGE MATTERS: INSURANCE AND HEALTH CARE (2001), available at http://www.nap.edu/cata- log.php?recordid=10188#toc [hereinafter COVERAGE MATTERS]; BRIAN D. SMED- LEY ET AL., UNEQUAL TREATMENT: CONFRONTING RACIAL AND ETHNIC DISPARITIES IN HEALTH CARE (2003), available at http://www.nap.edu/ openbook.php?isbn=030908265X [hereinafter UNEQUAL TREATMENT]; Timothy Stoltzfus Jost, Our Broken Health Care System and How To Fix It: An Essay on Health Law And Policy, 41 WAKE FOREST L. REV. 537 (2006). 5. Press Release, The Opportunity Agenda, New Poll: 77% of New Yorkers AGREE Hospital Closures Would Be BAD for New York's Health Care System (Nov. 20, 2006), http://www.opportunityagenda.org/site/c.mwL5KkNOLvH/b.1406015/ apps/s/content.asp?ct=1956799. 6. Id. 7. Id. 8. See, e.g., BRONX HEALTH REACH, SEPARATE AND UNEQUAL, MEDICAL APARTHEID IN NEW YORK CITY 18 (Oct. 2005), http://www.institute2000.org/policy/ medical-apartheid.pdf [hereinafter SEPARATE AND UNEQUAL]; THE OPPORTUNITY AGENDA, DANGEROUS AND UNLAWFUL: WHY OUR HEALTH CARE SYSTEM Is FAIL- ING NEW YORK AND HOW TO Fix IT 47 (2006), http://www.opportunityagenda.org/atf/ cf/%7B2ACB2581-1559-47D6-8973-70CD23C286CB %7D/ 2008] POSITIVE HEALTH tions 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.' 0 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 provi- sions, international and federal law, as well as social science re- search. 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 to- gether 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 ac- cess 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 fail- ing 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 constitu- Full%20Dangerous%20and%2OUnlawful%20Report.pdf [hereinafter DANGEROUS AND UNLAWFUL]. Areas with high concentrations of African Americans, Latinos, and Asian Americans are most likely to have serious shortages of primary care physicians. Hospital closures and downsizing in New York City have disproportionately affected low-income communities and communities of color. 9. DANGEROUS AND UNLAWFUL, supra note 8, at 1. 10. See infra Part II. 11. See, e.g., Fred Barnes, Editorial, S-chip of Fools, WKLY. STANDARD, Oct. 15, 2007; Cathleen F. Crowley, Call in to Comment on Health Coverage, TIMES UNION (ALBANY, N.Y.), Oct. 10, 2007, at D3; Henry L. Davis, Health Care Coverage De- bated, BUFFALO NEWS (N.Y.), Oct. 4, 2007, at C5; Candice Ferrette, Local Experts Push Universal Health Care at League of Women Voters Event, J. NEWS (WESTCHES- TER COUNTY, N.Y.), Oct. 11, 2007, at 1B; Micheline Maynard & Mary M. Chapman, FORDHAM URB. L.J. [Vol. XXXV tional 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. II. THE RIGHT TO HEALTH CARE UNDER THE NEW YORK STATE CONSTITUTION Since 1977, when U.S.
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