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Article Excerpt
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.
II. THE RIGHT TO HEALTH CARE UNDER THE NEW YORK STATE CONSTITUTION
Since 1977, when U.S. Supreme Court Justice William J. Brennan called on state courts to take a more active role in protecting human rights, (12) much has been written about the importance of state constitutions and courts in the face of federal courts' increasingly restrictive interpretation of U.S. constitutional provisions. (13) The constitutions of states around the country contain substantive provisions requiring government to ensure their residents' education, shelter, and health. (14) Federal courts have generally declined to recognize these guarantees within the U.S. Constitution. (15)
New York's Constitution is particularly protective of these rights. Among other guarantees, two provisions, the public health and the aid to the needy provisions, explicitly recognize the State's obligations to aid the poor and protect and promote New Yorkers' health. (16) Specifically, the public health provision of the constitution, article XVII, section 3, states:
The protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine. (17)
Article XVII, section 1 of the New York State Constitution, the aid to the needy provision, mandates: "The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature from time to time may determine." (18)
Article XVII, known as the "Social Welfare Article," was added to the New York Constitution in the midst of the Great Depression. (19) At the 1938 constitutional convention, delegates drafted a number of provisions addressing public health, social security, insurance, and aid to the needy. (20) Delegates bundled these provisions together as a social welfare amendment to the constitution and presented them to the public for a vote. (21) Voters overwhelmingly approved the amendment by a vote of 1,902,075 to 943,296. (22) The amendment carried the largest total vote of all the 1938 amendments to the constitution. (23) Every major party endorsed the social welfare amendment, (24) as did most newspapers and influential politicians of the day. (25) Once ratified, the social welfare amendment vested in the state government an affirmative obligation to provide for the health of its residents. (26)
A. The Public Health Provision
The text of the public health provision makes clear that it covers both the "protection" and the "promotion" of health, that it covers all "inhabitants" of the State, and that providing for such protection and promotion by state and municipal governments is mandatory. (27) The provision gives the legislature discretion in crafting a system that will effectively fulfill those goals. (28)
Taken together, the text, structure, purpose, and history of the provision make clear that it includes a guarantee of adequate health care as essential to safeguarding the public's health.
1. Health and Health Care in the 1930s: Historical Context of Article XVII
The legislative history of the social welfare article makes clear that the delegates to the convention drafted the provision to address the health needs of that era. (29) These included both broad public health concerns like sanitation, hygiene, and combating epidemics, and health care in the form of medical services. (30) At the time of the 1938 New York constitutional convention, the science of medical care had made significant advances, but thousands of people in New York and millions across the country could not afford medical care and were not getting the treatment they needed. (31) The public, policymakers, and health care providers were clamoring for health care reform. (32) The drafters of the state constitutional amendments recognized that this was a problem they had to tackle. (33)
Many of the concerns about public health of the 1930s were similar to those of today. For example, a survey prepared for the New York City Welfare Council during the winter of 1930-31, described "widespread deficiencies in diet [and] postponement of prophylactic measures and of treatment for incipient ailments." (34) The results of the country's first comprehensive survey of the economics of medical practice revealed that "'[m]any persons do not receive service which is adequate either in quantity or quality and the costs of service are inequitably distributed.'" (35)
The study made clear that "[t]he common belief that the poor receive necessary medical care is not supported." (36) Based on "variations in the death and sickness rates in different sections of the country and among different economic groups," the survey concluded "that there is a close relation between income and health." (37) Specifically, the "'two or three lowest income groups receive far less of nearly every service--care from physicians and dentists, hospitalization, eye care, maternity care and X-ray and laboratory service--than the groups with highest incomes,'" despite similar rates of sickness among poorer and wealthier families. (38) Other studies cited by the Constitutional Committee revealed that "[f]our out of ten people who are sick receive no medical care.'" (39)
These problems were widespread in the Unites States. Large areas of the country, predominantly poor areas with significant health needs, were facing a dire shortage of hospital beds. (40) As one Chicago resident testified at the 1938 National Health Conference held by the President's Interdepartmental Committee to Coordinate Health and Welfare Activities, the shortage of hospital beds and health care facilities was "disgraceful" and Chicago's health was in "an emergency situation." (41) In New York, hospitals with indigent patients were finding "an ever-mounting need for free hospital service and a corresponding decline in the number of paying or part-paying patients." (42) Physicians were receiving only "one-quarter to one-third of the total expenditure for health care." (43)
At the same time, there was growing recognition of the need for appropriate primary and preventative care. Public officials stressed the importance of children receiving appropriate health care. (44) Studies revealed that conditions like blindness, once thought of as "the affliction of age," could be prevented by "proper individual and medical care in earlier years." (45) Similarly, the New York State Commissioner of Health pointed out that "the death rate [from tuberculosis] could be cut in half by earlier diagnosis and better care of patients" and urged the "[e]xtension of health services in New York State to remedy inadequate local care." (46)
Keeping people healthy and ensuring adequate medical care was a priority for both the government and the private sector. New York City Mayor Fiorello La Guardia preserved funding for the city's public hospitals, even as he was forced to cut services citywide during the Great Depression. He recognized that "in keeping the poor healthy, the rest of the city would be, too." (47) As the head of a New York social service agency asserted, "[h]ealthy, [low-income New Yorkers] are a community asset. Sick and unemployed, they must look to public or private welfare agencies for complete support, in addition to the medical care required to bring them back to health." (48) National business leaders also underscored the need for investment in health care. As Charles Taussig, president of the American Molasses Company, noted: "The annual toll of preventable illness measured in terms of money runs into the billions. Progressive business will regard an adequate health service as a subsidy to industry, not a burden." (49)
The need for an improved health care system, particularly for low-income people, was, thus, well-recognized at the time of the 1938 constitutional convention. The main debate centered on the extent to which government should be involved in the administration of such a system. (50) The New York State Health Commissioner, Dr. Edward S. Godfrey, explained at an American Public Health Association meeting:
It is time to drop loose talk about "state medicine" and "socialized medicine" and to brush aside the false issue of American democracy which has been injected into the case for and against the extension of medical services to the low income groups of the population. Care must be taken to make sure that new plans [for the extension of medical services] will work well, at a reasonable cost to the public.... Today, no physician would go back to the old days when the needy were left to fend for themselves medically. (51)
It was in this context that the delegates to New York's constitutional convention assembled in 1938.
2. The 1938 Constitutional Convention
The delegates to the 1938 convention dedicated themselves to addressing the public's health concerns, and health care emerged strongly as a necessary element. (52) As we explain in this section, the record of the constitutional convention and reports from various committees reveal the delegates' intent to create a comprehensive system of health care to meet the health needs of all New Yorkers.
i. Vision for a Comprehensive Health Care System
An unofficial committee, set up by New York Governor Herbert H. Lehman to assist convention delegates in gathering information and data, (53) issued a report describing its vision for a health care system:
[P]ublic health in this country has developed from the time when its primary emphasis was one of charity to the present day in which the emphasis is upon medical care.... The scope of the authority to care for the public health has developed from its initial stage of meeting a present danger of epidemic to that of treatment and education of individuals in health matters amenable to large-scale community programs. (54)
This vision invoked a system of preventative medical care equipped to treat people and prevent illness. The report's definition of public health included "organizing these benefits [referring to medical services, preventative treatment of disease, control of infections, sanitation, and the like] in such fashion as to enable every citizen to realize his birthright of health and longevity." (55)
Hearings held before the Committee on Social Welfare of the constitutional convention made it clear that medical care was integral to ensuring the public's health. Social welfare groups that testified at hearings urged the delegates to empower the legislature to create systems for "the future handling of relief, medical care, hospitalization and ... housing." (56) Mayor La Guardia asked the Committee to adopt a social welfare amendment that "would obligate the State to care for its sick and needy, as well as to provide its citizens with adequate wages, working and living conditions and proper health facilities." (57)
The Committee's vision was an expansive one that went beyond emergency relief and disease control to embrace a system of comprehensive and preventative care that would reach all of the state's residents and communities. (58) Committee Chairman Thomas F. Corsi, a primary spokesman for the social welfare amendment, emphasized the need for state leadership in creating an effective public health system, noting that "public health as now practiced in this State should be validated in the State Constitution as a constructive program for the promotion of positive health." (59) He observed that "[p]oor health conditions in one locality are a menace to the State as a whole." (60) He argued that "[e]ffective control of disease and promotion of the health of the citizens of the State are impossible if the scope of health service and the administrative structure is left entirely to the judgment of the local political subdivision." (61) Accordingly, Corsi highlighted that the public health amendment served the important function of making clear that "public health is primarily a function of the State rather than the localities." (62)
Corsi presented the amendment in historical context, noting that the concept of public health was very limited when the constitution was drafted in 1894, and the constitution was therefore silent on the subject of public health. According to Corsi, the concept of public health at that time centered on remedial measures such as waste and sewage management, and the use of quarantine measures to contain infectious diseases. (63)
Corsi then noted that since that time, research had expanded the concept of public health beyond sanitation and quarantine to disease prevention and control. (64) Specifically, Corsi explained that public health embraced measures for the "prevention and control of such non-communicable diseases as cancer, diabetes, and heart diseas[e]." (65) He described
hospital-based cancer treatments, the administration of immunizations, the prenatal care of pregnant women, and "the conduct of well baby clinics" as part of the Committee's vision for a modern public health system--all of which require doctors and a functioning health care system. (66)
In Corsi's discussion of the public health provision before the convention, he emphasized that the provision had been endorsed by "the whole of the medical profession and every health and welfare agency in the State." (67) In support of the provision, he called upon the widely accepted definition of public health developed by a former president of the American Public Health Association ("APHA"). (68) Under that definition, public health constituted:
[T]he science and art of preventing disease, prolonging life, and promoting physical health and efficiency through, (1) organized community efforts for the sanitation of the environment; (2) the control of community infection; (3) the education of the individual in principles of personal hygiene; (4) the organization of medical and nursing services for the early diagnosis and preventive treatment of disease; (5) the development of the social machinery which will insure to every individual in the community a standard of living adequate for the maintenance of health. (69)
At that time, the APHA and the medical community had moved toward an expansive understanding of public health that included government-supported medical care. (70) At the APHA annual conference in 1938, delegates approved a "new deal in public health," which included "not only an extension of strictly public health services ... but Federal grants to aid State medical care for individuals in the low income brackets." (71)
ii. An Emerging View of the Importance of Publicly Funded Health Insurance
Further evidence of the prominence of health care concerns in delegates' minds can be found in the discussion at the convention about the need for a system of health insurance. (72) State provision of health insurance had been the subject of political debate since the time of the 1915 constitutional convention, and the debate continued at the 1938 convention. (73) Mayor La Guardia lobbied for the addition of language to the social welfare amendments that would empower the legislature to create a health insurance program, citing rising costs of medical care and hospitalization. (74) As one drafter of the social welfare amendments underscored, constitutional language was needed that was "sufficiently broad to allow ample scope for the social vision of the future and not restricted to the particular forms of social legislation or insurance" which had developed at that time. (75)
Delegates were given an extensive report prepared by the Committee on Social Welfare on health insurance which outlined the dimensions of the health problem, the current methods for caring for the sick and injured, attempts to reduce the cost of medical care, the adequacies and inadequacies of current methods, possible solutions to the "problem of caring for the sick," including different models for insurance, and an overview of the systems of health insurance in thirty-one European countries. (76)
The report recommended that the convention delegates revise the Constitution to authorize the State to "pave the way for adequate insurances for the unemployed, the sick and the aged, and enable the State itself, if the legislature so desires to administer all forms of relief directly." (77) Corsi specifically pushed for a social welfare amendment that gave the legislature the power to "provide for 'the protection by insurance or otherwise, against the hazards of unemployment, sickness and old age.'" (78)
Corsi asserted that "sickness" ranked next to unemployment as "the greatest single factor contributing to the vast expenditures for relief which this generation and generations to come are forced to bear." (79) He argued that "the creation of a health system by the State would pay dividends in the long run by creating healthy citizens and would reduce relief rolls." (80) After much debate, the delegates to the Convention voted in favor of the inclusion of the word "sickness," paving the way for the legislature to create a system of health insurance. (81)
The amendment permitted the State to establish a health insurance system. (82) Article VII of the State Constitution, which addresses state finances, now reads:
Subject to the limitations on indebtedness and taxation, nothing in this constitution contained shall prevent the legislature from providing for the aid, care and support of the needy directly or through the subdivisions of the state; or for the protection by insurance or otherwise, against the hazards of unemployment, sickness and old age.... (83)
The history of the 1938 constitutional convention thus demonstrates the delegates' intent to include a right to health care as part of a broader right to public health and to give the State both the responsibility to ensure an effective health care system and the latitude to bring it about through effective means.
3. Judicial Interpretation of the Public Health Provision
Few court cases have addressed the public health provision, (84) and those that have relate largely to the power of municipal agencies to promulgate rules and regulations to protect the public's health. (85) Indeed, when presented with the opportunity to rule on the scope of the provision, New York courts have generally sidestepped it. (86)
In Hope v. Perales, (87) for example, the plaintiffs claimed that because the New York Prenatal Care Assistance Program ("PCAP") excluded abortion from its medical services, it violated both the public health and the aid to the needy provisions of the constitution. (88) The New York Court of Appeals, however, determined that PCAP was not aimed at the protection of public health and therefore the public health provision was not applicable. (89)
Similarly, in Aliessa v. Novello, (90) the Court of Appeals avoided ruling on the plaintiffs' challenge to the State's denial of Medicaid to permanent resident immigrants under the public health provision, although it had the opportunity to do so. (91) The Aliessa court did refer to the U.S. Supreme Court's characterization of ongoing medical care as a "basic necessity of life," (92) but it decided the case under the aid to the needy provision, which it found to create an affirmative duty on the State to provide benefits to permanent residents. (93)
Despite the lack of case law under the public health provision, key language in that provision parallels the language in the aid to the needy provision, which, as explained further below, courts have interpreted to create an affirmative and enforceable obligation on the State. (94) As Professor Martha Davis has argued, the public health provision should therefore be construed identically to the aid the needy provision with respect to such an affirmative duty. (95) Moreover, the logic and history of the provision recounted above make clear that the duty includes the obligation to maintain an effective and inclusive health care system.
B. Aid to the Needy Provision of Article XVII
In addition to its duty to promote and protect the public's health, the New York State government has an affirmative constitutional duty to aid the needy. (96) Article XVII, section 1 of the New York State Constitution mandates: "The aid, care and support of the needy are public concerns and shall be provided by the State and by such of its subdivisions, and in such manner and by such means, as the legislature from time to time may determine." (97)
The provision affords the legislature some latitude in determining how to allocate funds, (98) but it has a clear and unavoidable obligation to ensure that needy New Yorkers receive care. (99) The State cannot deny assistance to New Yorkers whom it acknowledges to be in need, nor create hurdles unrelated to need that deprive aid to those who would otherwise be eligible. (100)
1. Legislative History
As explained below, the history of the aid to the needy provision makes clear that the drafters sought to respond to the social and economic crisis created by the Great Depression. The provision reflects the influence of reformers in the New Deal period, who called for a new category of legal rights to governmental assistance to respond to what they saw as the failure of the laissez-faire market system. (101) It established a clear source of constitutional authority for state-financed assistance, and a mandate on the State to provide relief to the needy. (102)
Before the Great Depression, aid to the needy in New York had been a local responsibility. (103) But as unemployment and homelessness grew, cities faced bankruptcy and local governments could no longer bear the burden of relief. (104) As a result, New York restructured its system of relief in 1936 through legislation, shifting the responsibility for relief from local, municipal-level agencies to the State Department of Social Welfare. (105) The aid to the needy provision amended the constitution to codify this shift in power from localities to the state, and to make clear that such aid was a mandatory function of state government. (106)
The provision also sought to fill a vacuum in relief to the needy caused by the dismantling of the Federal Emergency Relief Administration ("FERA") in December 1935. (107) Drafters sought to distinguish New York from other states that failed to fill the financial gap when federal aid ceased. (108) They pointed to the "brutal callousness to human suffering ... in the State of New Jersey a few years ago," when New Jersey closed its relief council in 1936 instead of increasing state aid to respond to the loss of federal funds. (109)
The explanatory report which the Committee on Social Welfare prepared to accompany its proposal made clear the legislature's obligations to ensure that the needy received financial assistance. (110) The report declared that the amendment would "remove all doubt as to the power of the legislature to authorize relief for those in need and to allocate responsibility therefore to the State and its political subdivisions." (111)
In his remarks introducing the aid to the needy provision approved by the Committee on Social Welfare to the convention, Chairman Corsi described the provision as a "charter of human protection for the underprivileged, the destitute and the handicapped in our state." (112) The provision, according to Corsi, "set forth a definite policy of government, a concrete social obligation which no court may ever misread." (113) He explained:
While the obligation expressed in this recommendation is mandatory, in that the Legislature shall provide for the aid, care and support of persons in need, the manner and the means by which [the Legislature] shall do so are discretionary. The Legislature may continue the system of relief now in operation. It may preserve the present plan of reimbursement to the localities. It may devise new ways of dealing with the problem. Its hands are untied. What it may not do is to shirk its responsibility which, in the opinion of the committee, is as fundamental as any responsibility of government. The State of New York has an admirable record in the care it has provided for its inhabitants in need. In fact, this state has the finest relief administration of any state in the Union, the most adequate budgets, the most competent administrative personnel, and the least amount of waste of any state that I know. We desire that this record be maintained. We desire that it be maintained not only in periods of great emergency as our present, but even in times of normal employment when the need be reduced in measure but certainly not in nature. (114)
The language responded to criticisms that the previous versions of the State Constitution were too rigid to allow for innovative solutions. (115) The 1874 constitution had purposely limited the State's ability to appropriate funds through a provision prohibiting the State from making any grants of money or credit in aid of private entities. (116) The State only had clear authority to reimburse local governments for their relief expenditures and localities. (117) The Great Depression, however, exposed the ineffectiveness of this patchwork local system of relief. (118) Delegates to the constitutional convention recognized that in the wake of industrialization, unemployment would be a permanent concern, and the State would need to set up an ongoing system of relief for the needy. (119) The goal of the amendment was to meet "the threat to freedom that comes ... from poverty and insecurity, from sickness and the slum, from social and economic conditions in which human beings cannot be free." (120)
The legislative history makes clear that the language "in such manner and by such means" in the aid to the needy provision was intended to provide the legislature with discretion in crafting the means of meeting the social welfare goals set forth in the constitution, not in deciding whether to meet them. (121) In the context of health care, the aid to the needy provision complements the public health provision by removing any doubt that the State must provide health care to those who cannot afford it. The former provision mandates "aid, care and support," connoting that both financial subsidy and the delivery of care are "public concerns" that "shall" be provided by the State and its subdivisions. (122)
2. Judicial Interpretation of the Aid to the Needy Provision
Judicial interpretation of the aid to the needy provision has similarly identified a clear, affirmative, and enforceable duty of the State, though the courts have been less clear regarding the nature of the legislature's discretion. When the New York Court of Appeals considered the aid to the needy provision's legislative history in Tucker v. Toia, the court found "a clear intent that State aid to the needy was deemed to be a fundamental part of the social contract." (123)
In Tucker, the Court of Appeals addressed the denial of home relief benefits to minor children living alone, and held that the State Constitution "unequivocally prevents the legislature from simply refusing to aid those whom it has classified as needy." (124) The court characterized the provision as imposing an affirmative duty on the State. (125)
Similarly, in Aliessa v. Novello, the New York Court of Appeals held that denying benefits to immigrants by imposing eligibility requirements that were unrelated to a person's need violated the letter and spirit of article XVII, section 1. (126) The court in Aliessa noted that "care for the needy is not a matter of 'legislative grace,' it is a [state] constitutional mandate." (127)
In McCain v. Koch, (128) the Court of Appeals determined that once New York City decided to provide emergency homeless shelter for eligible New Yorkers, such shelter had to meet certain minimum standards. (129) The court affirmed the trial court's finding that "in providing subminimum shelter the defendants were, in effect, denying any relief to the homeless in contravention of their statutory and constitutional obligations." (130) The court however declined to address the appellate division's conclusion that "in view of our decision in Matter of Bernstein v. Toia, plaintiffs are not likely to 'prove that [N.Y. Constitution] Article XVII substantively guarantees minimal physical standards of cleanliness, warmth, space and rudimentary convenience in emergency shelter.'" (131) The court explained that "whether or not plaintiffs have any right to shelter under State or Federal constitutional or statutory law, [the] Supreme Court had the power to require defendants, once they undertook to provide housing, to make that shelter minimally habitable." (132)
While affirming the legislature's obligations under article XVII, the Court of Appeals has also emphasized the legislature's discretion in fulfilling that obligation. (133) In reviewing a regulation of the State Department of Social Services providing flat housing grants, rather than grants taking into account the needs and individual circumstances of each client, the Court of Appeals in Bernstein v. Toia held that the State need not "always meet in full measure all the legitimate needs of each recipient," (134) provided that the method of distribution of aid to the needy is reasonably calculated to optimize the use of public finds. (135)
In Hope v. Perales, the Court of Appeals noted that both the aid to the needy and the public health provisions of the constitution "expressly accord to the Legislature discretion to promote the State's interest 'in such manner, and by such means as the legislature may from time to time determine'" and found that the legislature had not "transgressed its powers" when it decided not to include abortion funding in New York's Prenatal Care Assistance Program ("PCAP"). (136) The court in Hope explained that plaintiffs' challenge to the PCAP statute under the aid to the needy provision of the constitution failed because the court was "bound to accept the legislative determination that PCAP-eligible women are not indigent or in need of public assistance to meet their medical needs." (137) The court further noted that it could not "infer the contrary from the mere fact that PCAP--aimed neither at the protection of public health nor at the support of the needy--was enacted." (138)
These decisions articulate the bright line rule that the State may not erect criteria unrelated to need that prevent admittedly needy people from obtaining aid, as well as the more subjective rule that, once it has decided to provide a particular type of aid, the method chosen must meet basic standards of decency and "rudimentary convenience." (139) The decisions raise questions, however, about the limits of the legislature's duty to serve all needy New Yorkers, as well as its discretion in crafting solutions.
Professor Helen Hershkoff has argued that the Court of Appeals has granted too much discretion to the legislature in determinations regarding aid to the needy. (140) According to Hershkoff, the Court of Appeals' interpretation undermines the purpose of article XVII. She notes that the Court of Appeals has interpreted the article to "grant the legislature almost unreviewable 'discretion in determining the means by which this objective is to be effectuated, in determining the amount of aid, and in classifying recipients and defining the term "needy."' " (141) Hershkoff offers an alternative reading...
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