Marianne Engelman Lado
excerpted from: Marianne Engelman Lado, Unfinished
Agenda: the Need for Civil Rights Litigation to Address Race
Discrimination and Inequalities in Health Care Delivery, 6 Texas Forum on
Civil Liberties and Civil Rights 1- 45 (Summer 2001)(218 Footnotes
I. Introduction (pp. 1-3)
From Central Harlem to rural Alabama, poor communities of color are
exposed to great health hazards and experience high incidences of many
chronic and acute health conditions, but have access to relatively few
health services. The consequences are devastating: high rates of infant
mortality and morbidity due to childhood asthma, delayed care, and,
ultimately, shorter life spans. This article argues that civil rights
litigation could play a vital role in battling continuing patterns of
discrimination in the provision of health care and the lack of access to
care experienced by many low-income African Americans. Moreover, the
current transformation of health care financing and delivery systems
presents unique opportunities for intervention and legal challenge now,
before historical practices replicate themselves and become entrenched in
the new health care industry.
In the campaign for greater equity in the financing and provision of
health care services, is there a need for litigation? What role would
litigation play? Before reaching these questions, this article will first
outline the need for civil rights enforcement in the health care sector.
Disparities in access to health care are centuries old but continue to
threaten quality and longevity of life for many African Americans.
Further, virtually unchecked patterns of discrimination on the basis of
race and ethnicity by medical personnel and facilities send a strong
message about how we, as a society, value the lives of poor people of
color. A mother who cannot find a pediatrician in the neighborhood to
examine her child, the person living with HIV/AIDS who cannot afford
costly medication, and the patient on a hospital's public ward who learns
to shut off his own IV because the bag is empty and no hospital personnel
will respond to his calls, each understands the meaning of the message.
The disparities are all the more amoral in a society that spends fourteen
percent of its gross domestic product on health care, the majority of
which is paid for by the public purse.
Next, the article will turn to a historical perspective of legal
advocacy and civil rights enforcement in the distribution of the health
care services. Although civil rights advocacy in the health care area has
been limited, in comparison to advocacy concerning discrimination in the
areas of employment, housing and education, health care cases and advocacy
have made a difference. Litigation puts issues on the table that are
otherwise neglected. Although civil rights litigators have some key
allies(including, most notably, the National Health Law Program, as well
as lawyers from legal service organizations and the private bar, and many
national and community based organizations), there is no organized civil
rights health care bar to carry the ball.
Lastly, the discussion will focus on areas for litigation and advocacy,
suggesting three possible priorities, specifically:
1. Administrative advocacy to build mechanisms for civil rights
2. Impact litigation to challenge redlining and other discriminatory
practices engaged in by managed care organizations;
3. The development of new models of litigation to create and sustain
medical infrastructure in underserved areas.
By way of qualification, it should be noted that this article does not
provide full treatment of the legal grounds for each area of potential
litigation. Readers interested in more discussion of specific legal claims
can avail themselves of materials and analyses available elsewhere.
Racial Disparities and Civil Rights
Historical Perspectives and Civil Rights Enforcement
Litigation and Advocacy