August 15, 2009
State Constitutions and Health Care: Saturday Evening Review
Close to a third of state constitutions include a reference to health, yet as Professor Elizabeth Weeks Leonard of University of Kansas observes, there is little scholarly attention paid to health and health care under state constitutions. In her article, State Constitutionalism and the Right to Health Care, posted on ssrn available here, Leonard first situates her subject in the federal constitutional landscape; she concludes that the "U.S. Constitution, in text, purpose, structure, and policy provides little support for a federal health care right" (at 21), but also concludes that federalism allows states much leeway with regard to health rights. She focuses on seven states: Michigan, New York, North Carolina, Mississippi, South Carolina, Montana, and New Jersey. In addition, she considers what she calls "trends" focusing on both vulnerable groups (mentally ill, indigent, and imprisoned populations), as well as specific types of health (including environmental health and abortions). Her two appendices are a great source of information on state constitutional provisions and provide a quick overview.
Leonard does not conclude that state constitutions are necessarily the source of rights to health and health care. In her "prescription" section, she is very pessimistic about the possibility of "universal" health care under either state or federal models, even as she notes that the Massachusetts health insurance reform "now serves as a comprehensive model for federal reform" (at 69). She contends that
Health is central to state governance, whether it is explicitly recognized in the constitution or inextricably intertwined with other state laws and values. Therefore, ardent advocates of health care rights should not be troubled by the absence of constitutional guarantees of health in the U.S. or separate state constitutions. The multiple deficiencies in the country’s health care system to provide essential health care to individuals inevitably will, and already are, receiving attention. Exactly how those concerns will be addressed can only benefit from the views of the public, expressed through their state constitutions.
(at 71). As an overview of the right of health and health care under the federal and state constitutions, Leonard's article makes a timely contribution. ConLawProfs could certainly use this article as the basis for a teaching unit or problem (or even exam question) in a constitutional law or state constitutional law course.