The Full Realization of Our Rights: The Right to Health in State Constitutions

Abstract

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. Many Americans are surprised to hear that these rights have not been recognized as guaranteed by the U.S. Constitution, but they need look no further than state constitutions to find them. All state constitutions contain provisions for public education, and almost a third of state constitutions reference public health. 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.