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Distrust and Bioethical Issues

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III. AFRICAN AMERICAN DISTRUST AND CURRENT BIOETHICAL ISSUES

SLAVERY, SEGREGATION AND RACISM: TRUSTING THE HEALTH CARE SYSTEM AIN'T ALWAYS EASY!  AN AFRICAN AMERICAN PERSPECTIVE ON BIOETHICS  Vernellia R. Randall , 15 St. Louis U. Pub. L. Rev. 191 -235 (1996) 

Just like the rest of America, the African American community is facing a number of bioethical issues including: abortion, disparate health status, racial barriers to access to health care, racial disparities in medical treatment, the Human Genome Project and genetic testing, organ transplantation, AIDS, physician assisted suicide and right to die, reproductive technology, and violence. Unlike the dominant American group, African Americans view these issues through an additional screen of fear and distrust. It is this fear and distrust that causes us to believe that the principles of bioethics: autonomy, beneficence, nonmaleficence, and justice, won't protect our community from mistreatment and abuse. 

A. Abortion 

Abortion is an issue that deeply divides American society. Generally, the arguments center on right-to-life and pro-choice ideologies. The situation for African Americans is not that simple. On the one hand, abortion-rights activity has increased among African Americans. In fact, Black women choose abortion at twice the rate of their White peers (21 per 1,000 for Whites, 57 per 1,000 for Blacks). (89) On the other hand, the debate over abortion is too narrow, failing to address issues of prenatal care, infant-mortality rates, or teen- pregnancy rates. (90) Furthermore, while many African Americans believe that every woman has the right to decide about abortion, those same African Americans believe that abortion is genocide. (91) Some African Americans believe that this increase represents a form of eugenics: "Black women do not realize that the people forcing abortion on our people as a panacea to our social problems have a long history of beliefs in eugenics. They have a long history of racism." (92) In short, many African Americans view abortion as "elitist, racist and genocidal." (93) Thus, a bioethical discussion centered on either right-to-life or pro-choice principles fails to take into consideration the social problems driving African Americans to abortions or the fear that abortion is merely another form of genocide. 

 B.    Disparate Health Status 

To African Americans, the continued disparity between the health status of African Americans and European Americans is significant evidence that the health care system is not to be trusted. 

Wounded, [racism] retreated to more subtle expressions from its most deeply entrenched bunker . . . [F]orms of sophisticated racism attached to economic opportunities unfortunately can still be found today. . . . [N]owhere is that better exemplified than in the rate of excess death among black Americans. (94)

"Excess death" represents the number of deaths actually observed prior to the age of seventy years, minus the number of deaths that would be predicted when age- and sex- specific death rates of the U.S. European American population are applied to the African American population. (95)

Compared to European Americans' mortality rate, African Americans experience 60,000 excess deaths a year. (96) In particular, African American women have 53.12% excess deaths, as compared to European American women. (97) African American women have excess deaths in every category but suicide. "African- American women had 324.1% more deaths due to homicides," (98) "163% more deaths due to diabetes, 77.6% more deaths due to cerebrovascular disorders, 78.4% more deaths due to cirrhosis of the liver, and 78.4% more deaths due to heart disease than European-American women." (99) "African American women have a 178.43% excess maternal rate." (100)

African American men have 52.67% excess death rate over European American men. (101) African American men had 598.7% more deaths due to homicides; (102) 100% more deaths due to diabetes; 92.6% more deaths due to cerebral vascular disorders; 88.4% more deaths from cirrhosis of the liver; and 81.8% more deaths due to pulmonary infectious disease than European American men. (103)

Children are not immune. For instance, African American infants are 222.81% more likely to suffer from low birth weight and its accompanying handicaps. (104) 108.14% more African American infants die than do European American infants. (105) "When compared to the infant mortality of other nations, African-Americans rank thirty-second among countries compared to European-Americans' twelfth-place ranking." (106)

"The picture that is clearly painted by these health measurements is one of significant disparity between two races." (107) Few health problems are more pressing than the persistent excess of morbidity and early mortality among African Americans. (108) In fact, if we were to consider Blacks and Whites in the United States to be different nations, White America ranked twelfth in age- adjusted mortality rates (near Italy and Australia), whereas Black America ranked thirty-third (near Romania and Czechoslovakia) in 1991. (109)

Without decent health, it becomes nearly impossible for African Americans to gain the other attributes--money, education, contacts, industry knowledge-- necessary to gain access to the American economic system. Despite technological advances, African Americans continue to be sicker than European Americans. Given this level of disparity, "trusting the health care system ain't always easy." 

C.     Racial Barriers to Access 
 
 

Racial barriers to access are a significant problem for African Americans. (110) These barriers to access have their foundation in the historical relationship between African Americans and Southern medical institutions. As slaves, African Americans were perceived as property. (111) While some slave owners attempted to protect their own economic interests by providing minimal health care, most left the slaves to live or die as fate might befall them. (112) After the Civil War, the Bureau of Refugees, Freedmen and Abandoned Lands ("Freedmen's Bureau") was instituted to "furnish [] supplies and medical services" to the former slaves. (113) However, the Freedman Bureau had very limited effect in providing services to former slaves. In fact, the Compromise of 1877 effectively ended the period of radical reconstruction which had been an attempt by the nation to make affirmative efforts in helping African Americans. (114) During the Post-Reconstruction era, African Americans were excluded from health care by either prohibition or discrimination: "[Even] where segregation and discrimination [were] not required by law they became deeply ingrained in the mores. Such behavior became part of the American Way of Life. . . ." (115) This "way of life" remained visible until the Civil Rights Movement of the 1960s. (116) After the 1960s, health care institutions either fled predominantly African American communities or instituted policies which resulted in limited access to health care for African Americans. 

The continuing racial barriers to access are evidenced in discrimination that occurs in hospitals, the availability of facilities in the community, the segregation of facilities, and the limited availability of medical providers. For instance, many hospitals discriminate by using patient referral and acceptance practice standards that limit access. (117) Moreover, increasingly, hospitals that serve the African American community are either closing, relocating, or becoming private. (118) This is a particular problem since many of the traditional sources of health care in the African American community also are vanishing. At one point there were more than two hundred African American hospitals in the United States. African Americans relied on these institutions to "heal--and save--their lives." (119) By 1991, only twelve hospitals continued "struggling daily just to keep their doors open." (120)

Other evidence of racial barriers limiting access to health care is manifested in the problem of patient dumping. (121) An Arican American seeking care at a private hospital faces the possibility of being "dumped"; that is, the hospital may transfer an "undesirable" patient to a different facility. (122) Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA) to prevent patient dumping. (123) However, lack of enforcement of these legislative enactments makes patient dumping an ongoing problem. (124) Further, hospitals are continuing efforts to find ways of bypassing the requirements of EMTALA. For instance, by rerouting patients before they arrive at the hospital, a hospital can avoid EMTALA's requirements. (125) Consequently, patient dumping continues to be an issue that plagues African Americans. 

Other evidence of various racial barriers to access is the segregation that exists in facilities. For instance, nursing homes are the most segregated publicly licensed health care facilities in the United States. Racial discrimination, some commentators assert, is the major factor explaining that type of segregation. While African Americans constitute only twelve percent of the nation's total population, the African American poverty rate (31%) is three times greater than the European American poverty rate (10%). (126) However, African Americans constitute only twenty-nine percent of the Medicaid population and twenty-three percent of the elderly poor. (127) More significantly, Medicaid expenditures for African Americans are only eighteen percent of total expenditures. (128) Only ten percent of Medicaid intermediate-care patients are African Americans. 

The data on the actual numbers of White physicians who have offices in the African American community is not available. There are probably very few. Consequently, African American physicians have been an important aspect of filling the availability gap. Furthermore, despite being twelve percent of the population, African Americans are seriously underrepresented in health care professions. (129) Only three percent of physicians in the United States are African Americans; (130) only two-and-one-half percent of dentists in the United States are African Americans; (131) and only a little over three- and-one-half percent of pharmacists are African Americans. (132)

Racial barriers to access can take two forms. Barriers can be based on racist conduct that is intentional, or they can be based on conduct which, although not intentional, nevertheless results in a disproportionate disparate impact on African Americans. Much of the institutional racism historically has moved from intentional conduct to unintentional. While this classification may offer a distinction when assigning fault or culpability, the classification makes little difference to the African American feeling the adverse affects of discrimination. This legacy of a racist health care system persists today in African Americans who are sicker than European Americans and who continue to experience racial barriers to access. These continuing racial barriers reinforce African Americans' distrust of the health care system. 

D.    Racial Disparities in Medical Treatment 

Perhaps the most troubling aspect of institutional racism in the health care system is the occurrence of racial disparities in the types of services ordered by physicians and in the provision of the medical treatment itself. (133) These disparities are well-documented. Despite higher rates of heart disease in African Americans, European Americans are one-third more likely to undergo coronary angiography (134) and two to three times more likely to undergo bypass surgery. (135) Doctors advise African American women to gain less weight than White women during pregnancy. This outdated advice ignores the fact that sufficient weight gain is particularly important for Black women, who are twice as likely as White women to deliver low-birthweight babies. (136) Doctors are more likely to dismiss the use of cardiopulmonary resuscitation (CPR) as a treatment option for African Americans, Asians, and Hispanics, than for Whites. (137) European Americans are five to fifteen percent more likely to receive aggressive treatment. (138) In fact, the most favored patient for long-term hemodialysis is a European American male between the ages of twenty- five to forty-four. (139) A European American on dialysis is two-thirds more likely to receive a kidney transplant than a non-European American. (140)

Middle-income African Americans are less likely to receive a kidney transplant than middle-income European Americans. Elderly Blacks have greater difficulty obtaining care than elderly Whites, even though both groups are covered by the federal Medicare program. Hospitalization and death rates are higher among elderly African Americans than elderly Whites. (141) Of Medicare hospitalizations, African Americans are more likely to receive substandard care than other elderly patients and are more likely to be discharged while still unstable. (142) When hospitalized with pneumonia, African Americans were less likely than European Americans to receive intensive care. (143) This disparity in medical treatment persists even after controlling for clinical characteristics and income. (144) African Americans with HIV are less likely than whites to receive drug therapies used to prevent pneumonia, a major killer of HIV-infected people. The problem exists without respect to income, education, or health insurance status. (145)
 
 

African Americans receive health care treatment different from the "preferred" patient, the European American male. Whether this difference is based on individual prejudices or medical school training, it is evidence of institutional racism that cannot be tolerated. Any patient seeking care from a physician should be able to be assured of the most appropriate medical treatment available. Irrespective of race, each patient should be assured that the physician will act in the patient's best interest. Every person should be assured that the physician will not let personal prejudice or medical prejudice influence the medical treatment. Under the current situation, an African American does not have those assurances. Is there any wonder that African Americans do not trust the health care system? 

E.    Human Genome Project and Genetic Testing 
 
 

The Human Genome Project is a group of research projects, organized under the supervision of the federal government, devoted to the long-term goal of identifying all the genes of the human body. (146) There are both positive and negative ramifications of the Human Genome Project. (147) The positive ramifications can be grouped into those which promote general scientific interest, (148) and those that advance the diagnosis of disease (149) and advance disease treatment. (150) The negative ramifications include the potential for providing a basis for a eugenics program, (151) problems with invasion of privacy, (152) and problems with genetic testing. (153) It is generally agreed that the potential for discrimination is significant and serious. The discriminatory use of genetic information is particularly relevant in the context of schools, (154) employers and employees, (155) and insurers. (156) But what few acknowledge is that African Americans will be disproportionately affected by any genetic discrimination. (157)

There are three primary issues facing African Americans. Historically, European Americans have used genetic information to reinforce negative stereotypes about African Americans. (158) Second, given the racial barriers to access and the racial disparity in medical treatment, the potential benefits of gene mapping will be also be racially distributed. (159) Third, given the disparate health status of African Americans, the money being used to support gene mapping should be used to address the social conditions which contribute to current health status problems. (160) Developing a technology such as the Human Genome Project in a racist society would be like developing a bomb and giving it to a child. The United States has had a long history of using genetics in attempts to subjugate African Americans. (161) Yet, as usual, the fears of African Americans are, at best, put on the back burner and are, at worst, discounted as unreasonable. (162)

F.     Managed Care 

Insurers, both private and government, are electing to ration health insurance products that "manage" the patient's care. They do it through managed care products such as health maintenance organizations ("HMOs"), preferred provider organizations ("PPOs"), and individual practice associations ("IPAs"). As currently operated, these managed care products may cause more harm than good to African Americans. It is important to remember that managed care products have not developed in response to the poor health status or the lack of access to health care of African Americans, but rather to third-party payors' and employers' desire to control expenditures. The primary mechanisms that managed care products use to reduce expenditures are strict utilization review and financial risk-shifting. These mechanisms may operate in direct conflict to the goals of improving the health status of African Americans. 

Strict utilization review requires the prospective denial or modification of health care services. Financial risk-shifting is the mechanism which ensures that doctors and providers will act as gatekeepers to health care services. It is assumed that the gatekeeper will continue to order necessary care and that only "unnecessary" care will be cut. Unfortunately, the definition of "unnecessary" services will, at best, be based on some statistical norm of the general population. At worst, it will be based on standards that are a result of studies on a middle-class, European American, fairly healthy, male population. 

Regardless, managed care products will ultimately change the perceptions and expectations of society, physicians, patients, and third-party payors regarding what is owed to whom, what treatments are appropriate in what circumstances, and even what qualifies as a disease. (163) These altered perceptions may be contrary to the needs of African Americans and, without safeguards, could work to worsen the existing disparity in health status between European Americans and African Americans. 

Quality assurance, utilization review, and practice parameters are essentially designed around data based on middle-class populations who generally have had "good," if not excellent, access to health care services. (164) African Americans have definitely not had excellent access to health care services. (165) That lack of access coupled with other issues affecting African Americans--racism, homelessness, violence, drugs, etc.--means that they will come into managed care products with poorer health status and needing more, not less, health care services. (166) In a system focused on decreasing utilization, it seems difficult to imagine that African Americans will receive "more" health care services, while others receive " less." If managed care products do not provide culturally relevant care, then African Americans may have technical access to health care, but not quality health care. 

Beyond these problems with utilization review and financial risk shifting, managed care products' continued focus on cost containment may be inherently antithetical to the needs of African Americans. Just as insurance had a "perverse influence" on health service delivery, (167) so shall managed care products. Since third-party payors will make more when they treat less and spend less on hospitals and providers (infrastructure), (168) they will, over time, tend to place increasingly stringent requirements on providers; they will fail to develop more expensive, but culturally appropriate treatment modalities; and they will refuse or minimize the expenditures necessary to develop adequate infrastructure for African Americans. (169) If health providers and health organizations that serve the underserved population do not insist that the provision of culturally competent care be a basic component of any managed health care product, African Americans will not benefit as much as we hope from this so-called "health care reform." (170) Yet, these concerns are often ignored or minimized by most bioethicists. (171) It will not be easy to trust managed care organizations to operate in any way but a discriminatory way. 

G.     Organ Transplantation 

African Americans have disparate access to organ transplantation. African Americans wait almost twice as long as European Americans for their first transplant--13.9 and 7.6 months, respectively. (172) Although European Americans represent only sixty-one percent of the dialysis population, they receive seventy-four percent of all kidney transplants. (173) In 1988, African Americans represented 33.5% of dialysis patients, but only 22.3% of kidney transplants went to Black patients. (174) In fact, in any given year, European American dialysis patients have approximately a seventy-eight percent higher chance of receiving a transplant than African American dialysis patients. (175) Most bioethicists attribute this disparity to African Americans' failure to donate organs. For instance, in 1988, Blacks donated only twelve percent of living-related transplants and only eight percent of cadaveric kidneys. (176) However, this disparity also exists because of the level of mandated antigen matching required, a level that may be unnecessary for successful transplantation. (177)

Organ transplantation presents two conflicting problems for African Americans. African Americans do not have equitable access to available organ transplants as do European Americans. They are on waiting lists almost twice as long as European Americans, even when such factors as blood type, age, immunological status, location, and the decreased organ donations by African Americans are taken into account. (178) In part, this is due to allocation rules such as "antigen matching rules which favor European Americans." (179) However, there are alternative allocation rules that could reduce, if not eliminate, the racial disparity in access to donated kidneys. (180)

The most common reasons for donor reluctance include: lack of information; religion; distrust of medical professionals; fear of premature death; a preference to donate only to members of the same race; and the failure of health care professionals to ask African American families for consent in an effective way. (181) The fear of premature death is fueled by popular shows and community rumors: In a fairly recent Law and Order telecast, a rich White man bought his daughter a perfect kidney from the surgeon. The surgeon obtained the organ by taking a medical team to a park and mugging a preselected victim. The victim was an African American man. (182) Moreover, a popular story in the African American community is of a Hispanic man who was found "mugged" on the streets. When the ambulance took him to the hospital, he was declared brain dead and his organs were removed before his family was notified. 

Thus, popular folklore fuels the fear of African Americans. In fact, it is not an unreasonable fear. The world's most enduring line of human cell cultures--used to test the polio vaccine, new drugs, and potential cancer cures--was taken without informed consent from a Black woman in Baltimore who was treated for cervical cancer at Johns Hopkins Hospital in 1951. The cancer killed Henrietta Lacks, but the HeLa cells grown from her flesh live on in labs throughout the world. (183) Laws in Pennsylvania, California, Florida, Michigan, Ohio, and Texas allow the coroner's office to remove eyes and brains from the bodies of the dead without prior consent or permission from next of kin. (184) More often than not, African Americans are most affected by this law. (185) Given the current level of mistreatment based on race, there is no reason why African Americans should believe that their bodies will not become a source of organs for European Americans. (186)

H.      Reproductive Technology 
 
 

African American women like most women seek "reproductive choice." (187) They want the power to make genuine choices about their reproductive health. (188) However, we tend not to have that choice because choice involves more than a "right to an abortion"; it involves the real ability to exercise the choice to have healthy children or not to have children at all. To have real reproductive choice, African American women, at a minimum, would need access to reproductive health care, including prenatal care; access to infertility services; freedom from coerced or ill-informed consent to sterilization; economic security, which could prevent possible exploitation of the poor with surrogacy contracts; freedom from toxins in the workplace; healthy nutrition and living space; and the right to safe, legal, and affordable abortion services. (189)

1. Reproductive Health--Workplace Toxins 

African American women are less healthy than European American women, due in part to our overrepresentation in jobs that have high levels of workplace toxins. (190) How to protect the reproductive health of women is a significant legal issue that will disproportionately affect African American women. The leading case on the issue, United Automobile Workers v. Johnson Controls, Inc., does little to help. (191) Certainly, the decision protects women from forced sterilization in order to maintain higher paying jobs. However, because the decision does not address the work conditions which threaten the health and safety of women and their fetuses, African American women could be rendered infertile simply by doing their jobs. (192) Reproductive health of African American women will continue to lag behind European American women as long employers are allowed to evade their responsibility for maintaining toxic-free environments. (193)

2.    Reproductive Health Care - Infant/Maternal Mortality Rates 

The lack of adequate prenatal care has resulted in both high maternal and infant mortality rates. In 1986, African American women were 3.8 times more likely than White women to die from pregnancy-related causes. (194) Nearly one African American baby out of ten is born to a mother who received late or no prenatal care. Among African American teenage mothers under age fifteen, the proportion increases to two in ten. (195)

3. Contraception--Norplant 

On December 10, 1990, the United States Food and Drug Administration (FDA) approved for general use in the United States the contraceptive Norplant, a long-acting drug. (196) The potential abuse of Norplant is enormous and already apparent. On December 12, 1990, the Philadelphia Inquirer published an editorial entitled Poverty and Norplant: Can Contraception Reduce The Underclass? (197) All fifty states have already incorporated Norplant into their welfare systems, providing either reimbursement for the cost of Norplant to women on Aid to Families With Dependent Children or a cash bonus for those women who agreed to be implanted with the device. (198) A number of high schools considered offering Norplant to teenage girls in order to prevent teenage pregnancy. (199) The courts and legislatures have considered conditioning probation on the acceptance of Norplant. (200) These Norplant proposals aimed at poor, African American women are based upon the concept that poor, Black women are "deviant" and thus less deserving of motherhood than White women. (201)

"Real" women were expected to be pious, pure, submissive, and domestic, middle-class and white. Black women, on the other hand, were presumed to conform to an entirely different set of characteristics-- characteristics which precluded them from ever being seen as ideal women. Generally, four controlling images of African-American women have emerged, all of which deviate from the middle- and upper-class standard of womanhood: (1) "mammy," the faithful, obedient, nurturing, and caring domestic servant; (2) the "matriarch," who is overly aggressive, unfeminine, and emasculating; (3) the "welfare mother," who is irresponsible, lazy, and immoral; and (4) the "Jezebel," who is sexually aggressive. . . . As a result, African- American women are seen as "somehow less female, perhaps even less human as well." Thus, they are not maternal nor are they deserving of motherhood. (202)

4. Sterilization 

As discussed supra, African American women have not had genuine access to voluntary sterilization, but have been victims of involuntary surgical procedures that strip them of their ability to reproduce. After the abuses of the 1970s, the Department of Health and Human Services adopted regulations to ensure that informed consent was obtained for all federally funded sterilizations. (203) However, there is inadequate monitoring of the consent regulations, and whatever data is collected is not published or made publicly available. (204)

5. Infertility Treatment 

The ability to have children is as important as the ability to prevent having children. Yet, discussions of reproductive issues concerning African American women seldom include the need for infertility services. (205) This is a significant issue because the risk of infertility is one and a half times greater for African Americans than for Whites. (206) Yet, seventy-five percent of low-income women in need of infertility services have not received any services. (207) "Given that the average fee for each infertility treatment is between $2,055 and $10,000, it is no wonder that poorer couples, a disproportionate number of whom are African Americans, do not pursue infertility treatment." (208) While infertility services are covered under Medicaid and Title X, (209) little information is available on the amount of public funds spent on infertility services. (210)

6. Surrogacy (211)

There are two types of surrogacy arrangements. In the first type of arrangement, a couple with the female partner unable to bear children uses the male partner's sperm to inseminate a fertile woman, who becomes the"surrogate mother." (212) Because this is a costly arrangement, it is limited to affluent couples who are disproportionately White. While there is significant potential for abuse of poor women, it is not likely that they will be African American, because an egg obtained from an African American woman would produce an African American child. (213) The second type of surrogacy arrangement involves the use of an egg from a female donor who is not the surrogate. The egg is fertilized, then transferred into the uterus of another woman. This woman, the "gestational mother," has no genetic connection to the child. (214)
 

This type of arrangement is significantly more dangerous to poor, African American women. It literally turns women into uterus prostitutes, wombs for rent. It raises the issue of what constitutes motherhood: is it biology, genetics or something else? (215) If African Americans--and other women-- become breeder women for the affluent, it will be "painfully reminiscent of slavery and the days of the breeder woman whose feelings for her child, whether born out of love or out of rape, were disregarded when men with power over her made decisions about the child." (216)

 

FN89. Minority Update: Genocide to Some; Vital Choice to Others, American Political Network: Abortion Report, June 17, 1992, available in WESTLAW 06/17/92 APN-AB15. 

FN90. See generally John D. Lantos, Race, Prenatal Care, and Infant Mortality, in "IT JUST AIN'T FAIR": THE ETHICS OF HEALTH CARE FOR AFRICAN AMERICANS 67, 67-74 (Annette Dula & Sara Goering eds., 1994) (providing an overview of some factors affecting infant mortality, examining studies that support the position that the difference is genetic, and discussing the political implications of adhering to the genetic explanation of racial differences in infant mortality). 

FN91. Fern Shen & Peter Pae, Calls for Peace Met With Caution, WASH. POST, Jan. 23, 1995, at D1 (reporting an anti-abortion demonstration where protester Barbara Bell maintained that abortion contributes to the genocide of African Americans); Leonard Hughes & Hamil R. Harris, End of Abortion Ban Draws Fire, Praise, WASH POST, Nov. 4, 1993, at J1 (reporting comments by Archbishop G. Augustus Stallings, head of the African American Catholic Congregation, acknowledging the right of women to choose, but insisting that abortion is genocide to African Americans); see also MILLS, supra note 69, at 274 (discussing Black activist Fannie Lou Hamer's view of abortion and birth control as a form of genocide); Minority Update: Genocide to Some; Vital Choice to Others, supra note 89 (quoting SUN poll of Maryland residents: "more than 50 percent of blacks polled said they would support a law to keep most abortions legal . . . [while] [t]hirty-two percent of the black respondents said they would vote no."); Felicia R. Lee & Rachel B. Gold, Empty Womb, ESSENCE, May 1990, at 51 (quoting Larry Hugick, Vice President of the Gallup Organization, Inc.: "The most conservative people on the abortion issue are Blacks, Hispanics and white Catholics."); WEISBORD, supra note 69; Darity & Turner, supra note 69, at 1454-56 (discussing the view held by some Blacks that family-planning programs are a potential means of race genocide). 

FN92. Women: Blacks "No Longer Silent" on Abortion, American Political Network: Abortion Report, Aug. 25, 1992, available in WESTLAW 08/25/92 APN-AB13 (quoting Akua Furlow of Black Americans for Life); see also Lee & Gold, supra note 91, at 51-53 (noting that author La Verne Powlis, who, ten years ago, sat on the board of Planned Parenthood of New York City, maintains that "any destruction of Black life is devastating for already embattled Black families."). 

93. 

FN94. Vernellia R. Randall, Racist Health Care: Reforming an Unjust Health Care System to Meet the Needs of African-Americans, 3 HEALTH MATRIX 127, 141 (1993) (emphasis added) (citation omitted). 

[T]he theory of internal colonialism views blacks as slaves of society. The history of blacks in the US is traced, beginning with the introduction of slavery during the 1600s. The features of slavery--legal until the passage of the 13th Amendment in 1865--persisted as a form of semi-slavery [sic] 1960 and as a different form of institutionalized racism later. 

Id. at n.64; see also Lonnie R. Bristow, M.D., Mine Eyes Have Seen, 261 JAMA 284, 284-85 (1989) (noting major health issues facing African Americans today). Since the civil rights and voting rights laws of the early 1960s, the United States has seen significant changes in the status of African-Americans. However, it is arguable whether "apartheid-U.S. . . . or whether economic segregation and the perpetuation of our essentially feudal status amount to its continuation, in fact, if not in law." Ramona Hoage Edelin, Toward An African- American Agenda: An Inward Look, in THE STATE OF BLACK AMERICA 1990 173, 178 (Janet Dewart ed., 1990) (noting that death rate statistics seem to suggest that the feudal status of African Americans has continued in fact). 

FN95. Randall, supra note 94, at 141; Bristow, supra note 94, at 284. 

FN96. Randall, supra note 94, at 142. 

FN97. Id. at 141. 

FN98. Id. at 142. Health status includes not only physical health but mental health as well. Thus, in a racist, oppressive society, homicides are as much an indication of mental health and public health as are suicides. See generally Beth Alexander, Violence: A Public Health Problem (Editorial), 8 PEDIATRICS FOR PARENTS 8 (1992); Laurie Jones, Gun Violence As Public Health Issue, AM. MED. NEWS, Nov. 16, 1992, at 3; C. Everett Koop, M.D. & George Lundberg, M.D., Violence in America: A Public Health Emergency, 267 JAMA 3075 (1992) (defining violence as a mental/public health issue, as well as a major social and political concern); Antonia C. Novello, M.D. et al., A Medical Response to Violence, 267 JAMA 3007 (1992) (referring to violence as an assault on the health of Americans); James S. Belloni et al., Application of Principles of Community Intervention, 106 PUB. HEALTH REP. 244, 244 (1991) (asserting that violence takes a high toll in "mortality, morbidity, quality of life, and use of health care resources. . . ."). Moreover, violence has been a community problem from early American history. "Before there was professional law enforcement, everyone in a community was involved in crime prevention." Id. Thus, recognizing homicide as a health issue is a return to deep-rooted ideas of community. Id. See generally Dan E. Beauchamp, Community: The Neglected Tradition of Public Health, HASTINGS CENTER REP., Dec. 1985, at 28 (discussing the governmental power exerted to control or influence lifestyle choices of Americans). 

FN99. Randall, supra note 94, at 142; Ronald M. Andersen et al., Black-White Differences in Health Status: Methods or Substance?, in HEALTH POLICIES AND BLACK AMERICANS 84 (David P. Willis ed., 1989) (citing the National Center for Health Statistics 1986a, Table 21) (discussing the national health policies on the health status of the Black population in the United States). 

FN100. Randall, supra note 94, at 142. "This is the rate of death per 100,000 live births from deliveries and complications of pregnancy, childbirth and the immediate period after childbirth (the puerperium)." Id. at n.70 (citing U.S. DEPT. OF HEALTH & HUMAN SERVICES, HEALTH STATUS OF MINORITIES AND LOW INCOME GROUPS: THIRD EDITION 20 (1991) (Table 1)). 

FN101. Id. at 141 n.66 (citing U.S. DEPT. OF HEALTH & HUMAN SERVICES, HEALTH STATUS OF MINORITIES AND LOW INCOME GROUPS: THIRD EDITION 26-27, 143 (1991) (Table 13; Table 3)). 

FN102. Id. at 142 ("The homicide rate for African-American males living within Standard Metropolitan Statistical Areas (SMSAs) is more than twice that for young African-American males residing outside SMSAs."); id. at 142 n.71 (citing Belloni, supra note 98, at 245-46; Homicide Among Young Black Males--United States, 1970-1982, 34 MORBIDITY & MORTALITY WKLY. REV. 629-33 (1985)). 

FN103. Id. at 142; Andersen, supra note 99, at 84 (quoting National Center for Health Statistics 1986a, Table 21). 

FN104. Randall, supra note 94, at 140 (citing U.S. DEPT. OF HEALTH HUMAN SERVICES, HEALTH STATUS OF MINORITIES AND LOW INCOME GROUPS: THIRD EDITION 108 (1991) (Table 10)). 

FN105. Id. at 143. 

FN106. Id. 

FN107. Id.; see also H.R. REP. NO. 804, 101st Cong., 2d Sess. 19 (1990), reprinted in 1990 U.S.C.C.A.N. 2311, 2330 (finding that African Americans are disproportionately represented among individuals from disadvantaged backgrounds and that the health status of individuals from disadvantaged backgrounds, including racial and ethnic minorities, in the United States is significantly lower than the health status of the general population of the United States). 

FN108. See Perils of Being Born Black: Life Expectancy for African Americans Is Sinking, TIME, Dec. 10, 1990, at 78, available in 12/10/90 TIME MAG. 78, 1990 WL 2757574 (asserting that the higher mortality rates of African Americans stem not only from those factors which relate directly to the perils of living in poor, violent neighborhoods, but that other socio-economic problems, including second-rate education and inadequate access to doctors and hospitals, also hold down African Americans' life expectancy rates). 

FN109. Randall, supra note 94, at 143 n.75. 

FN110. See generally Jean J. Schensul & Barbara H. Guest, Ethics, Ethnicity, and Health Care Reform, in "IT JUST AIN'T FAIR": THE ETHICS OF HEALTH CARE FOR AFRICAN AMERICANS 24 (Annette Dula & Sara Goering eds., 1994) (advocating the creation of new, community-based and culturally appropriate health care options); Vernellia R. Randall, Does Clinton's Health Care Reform Proposal Ensure [E]qual[ity] of Health Care for Ethnic Americans and the Poor?, 60 BROOK. L. REV. 167 (1994) (using President Clinton's 1993 Health Security Act proposal as a basis for analysis, the author analyzes the potential for health care reform for ethnic Americans and concludes that health care reform will fail ethnic Americans and the poor). 

FN111. Slavery in North America was one of the "harshest form[s] of social relations ever to exist." ALPHONSO PINKNEY, BLACK AMERICANS 2 (4th ed. 1993). The slave had no rights and received no protection from society. The slave owner had absolute power over the slave. Id. 

FN112. Id. at 6; Woodrow Jones, Jr. & Mitchell F. Rice, Black Health Care: An Overview, in HEALTH CARE ISSUES IN BLACK AMERICA: POLICIES, PROBLEMS & PROSPECTS 6 (Woodrow Jones, Jr. & Mitchell F. Rice eds., 1987); see also Mitchell F. Rice, On Assessing Black Health Status: A Historical Overview, 9 URB. LEAGUE REV. 6 (1985-1986). The dual status of slaves as valuable property and as persons with human rights may have encouraged some slave owners to provide at least minimal health care. See generally J. Thomas Wren, A Two-Fold Character: The Slave as Person and Property in Virginia Court Cases, 1800-1860, 24 S. STUD. 417-31 (1985) (maintaining that although slaves were perceived as property in the antebellum South, Virginia courts often recognized their humanity as well). By 1860, the Southern legal system had begun to accept an implicit duality in the states of the slaves as both property and person. See Arthur Howington, "A Property of Special and Peculiar Value": The Tennessee Supreme Court and the Law of Manumission, 44 TENN. HIST. Q. 302-17 (1985) (discussing a Tennessee court's recognition of limited humanity for slaves); Winstanley Briggs, Slavery in French Colonial Illinois, 18 CHI. HIST. 66, 75 (1989-1990) (arguing that the high cost of slaves and the risk of offending tribal neighbors led the settlers to treat their slaves as subordinate, but valuable property). 

FN113. PINKNEY, supra note 111, at 19 (citing JOHN H. FRANKLIN, RECONSTRUCTION: AFTER THE CIVIL WAR 36-37 (1961)). 

FN114. Throughout the period of Reconstruction, attempts were made to obstruct the progress toward "racial democracy." PINKNEY, supra note 111, at 20. The 1876 election was in dispute between Rutherford B. Hayes (Republican) and Samuel Tilden (Democrat). Hayes was declared the winner with the understanding that the remaining troops in the South would be withdrawn, the South would be accorded home rule, and with the assurance that the "dominant whites [would have] political autonomy and nonintervention in matters of race and policy. . . ." Id. at 21 (citing C. VANN WOODWARD, REUNION AND REACTION: THE COMPROMISE OF 1877 AND THE END OF RECONSTRUCTION 246 (1966)). Thus, the Republican Party "abandon[ed] the blacks to former slaveholders . . . [and the] compromise signaled a return toward slavery. . . ." Id. 

115. 

Jones & Rice, supra note 112, at 6. For instance, in 1875, Congress passed the Civil Rights Act which made it a crime for a person to deny any citizen equal access to accommodations in inns, public conveyances, theaters, and other places of amusement. Civil Rights Act of 1875, 18 Stat. 335 (1875). In 1883, the Supreme Court declared the Civil Rights Act of 1875 unconstitutional. The Civil Rights Cases, 109 U.S. 3 (1883). In 1896, the Court ruled that separate (segregated) facilities for African Americans and European Americans did not violate the Thirteenth or Fourteenth Amendment. Setting the pattern for race relations for more than three decades, the ruling declared that "[i]f one race be inferior to the other socially, the constitution of the United States cannot put them upon the same plane." Plessy v. Ferguson, 163 U.S. 538, 552 (1896). 

116. FN116. In 1954, the Court questioned the "separate but equal" doctrine of Plessy v. Ferguson. Brown v. Board of Educ., 347 U.S. 483 (1954). In particular, in a unanimous decision, the Court found that legally sanctioned racial segregation is usually interpreted as connoting the inferiority of blacks, which adversely affects the educational development of black children. Id. at 494. "Any language in Plessy v. Ferguson contrary to this finding is rejected." Id. at 494-95. Brown v. Board of Education was a significant milestone in civil rights. However, it was the Civil Rights Movement of the 1960s which culminated in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which resulted in many of the overt signs of discrimination being eliminated. In particular, the Civil Rights Act of 1964: prohibited the denial of the right to vote in national elections because of race and made a sixth grade education a presumption of literacy (Title I); prohibited discrimination in places of public accommodation (Title II); authorized the Justice Department to file suits to desegregate public facilities (Title III); authorized the Justice Department to file suit to desegregate public schools or colleges (Title IV); established the Commission on Civil Rights (Title V); prohibited discrimination in federally financed programs (Title VI); prohibited discrimination in employment (Title VII); authorized the gathering of registration and voting statistics based on race (Title VIII); allowed for federal appeals court intervention in civil rights cases to be remanded to state courts (Title IX); and established the Community Relations Service in the Department of Commerce (Title X). Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241-67 (codified as amended in scattered portions of Titles of the United States Code sections 28 and 42). 

FN117. Randall, supra note 94, at 149. 

These practices restrict the admission of African-Americans to hospitals. Discriminatory admission practices include: 

. Layoffs of recently hired African-American physicians--where those African-American physicians admit most of the African-American patients served by the hospital; 

. Not having physicians on staff who can accept Medicaid patients; 

. Requiring pre-admission deposits as a condition of obtaining care; 

. Refusing to participate in programs to finance care for low-income patients not eligible for Medicaid; and, 

. Accepting only patients of physicians with staff privileges when the patients of such physicians do not reflect the racial composition of the local community. 

Id. (citations omitted). 

FN118. "In a study done between 1937-1977, researchers showed that the likelihood of a hospital's closing was directly related to the percentage of African-Americans in the population. Throughout the 1980s many hospitals relocated from heavily African-American communities to predominantly European- American suburban communities." Id. at 149-50 (citations omitted). 

FN119. The Crisis of the Disappearing Black Hospitals, EBONY, Mar. 1992, at 23. 

FN120. Id. 

FN121. "The transfer is medically appropriate only when the care required is not available at the transferring hospital. However, many transfers are for economic reasons, i.e., the patient was either uninsured or unable to make admission deposits. African-Americans are disproportionately affected by these practices." Randall, supra note 94, at 151-52 (citations omitted). 

FN122. See generally Geraldine Dallek & Judith Waxman, "Patient Dumping": A Crisis in Emergency Medical Care for the Indigent, 19 CLEARINGHOUSE REV. 1413 (1986) (describing the recent attempts by local, state, and federal governments to eliminate patient dumping). 

FN123. Randall, supra note 94, at 152. 

FN124. "For instance, as of October 30, 1990, only 530 facilities had been investigated; only 139 facilities were found in violation of the statute; and only five facilities actually lost their Medicare contracts." Randall, supra note 94, at 153 (citations omitted). 

FN125. Randall, supra note 94, at 153-54. 

In Johnson [v. University of Chicago Hosps., 982 F.2d 230 (1992)], a parent called the paramedics after her baby went into cardiac arrest. The paramedics contacted University of Chicago hospital. The hospital told the paramedics to take the child to another hospital even though it was only five blocks away. The child was taken to a hospital without a pediatric intensive care unit and had to be transferred to another hospital. The child died after admission to the second hospital. The plaintiff sued on common law claims and for violation of COBRA. The district court dismissed and the Seventh Circuit upheld the dismissal of the COBRA claim. The Seventh Circuit noted that 'In accordance with the plain meaning of the statutory language, we do not believe that the infant ever 'came to' the hospital or its emergency department. For purposes of COBRA, a hospital-operated telemetry system is distinct from that same hospital's emergency room.' The court went on to acknowledge that a '. . . hospital could conceivably use a telemetry system to dump patients'; nevertheless, the court held that the 'statute does not expressly address the question of liability in such a situation.' Thus, the Seventh Circuit leaves the door open for other hospitals to continue dumping patients, most of whom will be African-Americans. 

Id. (citations omitted) 

FN126. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, SERIES P60-184, CURRENT POPULATION REPORTS, CONSUMER INCOME: MONEY AND POVERTY STATUS IN THE UNITED STATES: 1992 xii (1993). 

FN127. Racial Disparities in Medicaid Coverage for Nursing Home Care, AN AFRICAN AMERICAN HEALTH CARE AGENDA: STRATEGIES FOR REFORMING AN UNJUST SYSTEM (NAACP Legal Defense & Educ. Fund, Inc., Baltimore, MD), Oct. 31, 1992. 

FN128. Id. 

FN129. See generally Warren J. Ferguson, The Physician's Responsibility to Medically Underserved Poor People, in "IT JUST AIN'T FAIR": THE ETHICS OF HEALTH CARE FOR AFRICAN AMERICANS 122 (Annette Dula & Sara Goering eds., 1994) (arguing that physicians and their organizations must take responsibility for understanding attitudes and values that shape their delivery of health care to the underserved). 

FN130. Jones & Rice, supra note 112, at 12 (citation omitted). Lack of African American representation in medicine is traceable to segregation in medical schools. Id. at 11. For instance, an African American did not receive a degree in an American school until 1847. While some White schools (nine) admitted African Americans prior to the Civil War, most schools did not. In fact, even in 1971, twenty-one medical schools out of eighty-five still had no African American students. Id. Even with the admission of African Americans to predominantly White schools, the African American medical schools, Howard University and Meharry Medical School, still train seventy-five percent of African American physicians. Donald E. Wilson, M.D., Minorities and the Medical Profession: A Historical Perspective and Analysis of Current and Future Trends, 78 J. NAT'L MED. ASS'N 177, 178 (1986). See generally MAX SEHAM, M.D., BLACKS AND AMERICAN MEDICAL CARE 20-21 (1973) (discussing the correlation between racism and infant mortality); U.S. DEPT. OF HEALTH & HUMAN SERVICES, MINORITIES & WOMEN IN THE HEALTH FIELDS 19 (1990) (Table 3). 

FN131. Jones & Rice, supra note 112, at 12 (citation omitted); U.S. DEPT. OF HEALTH & HUMAN SERVICES, supra note 130, at 19 (Table 3); see also Amanda Husted, Shortage of Black Dentists Has Ill Effect in Community, ATLANTA J. & CONST., Aug. 19, 1991, at B3 (discussing effects of the shortage of African American dentists on the community). 

FN132. Jones & Rice, supra note 112, at 12 (citation omitted); U.S. DEPT. OF HEALTH & HUMAN SERVICES, supra note 130, at 19 (Table 3). 

FN133. One wonders how much of the disparate treatment is a legacy in medical practice from slavery when "doctors frequently complained that they were unable to administer treatment because the slaves were not amenable to the same medical treatment as white patients." PINKNEY, supra note 111, at 5. 

134. 

Council on Ethical and Judicial Affairs, Black-White Disparities in Health Care, 263 JAMA 2344 (1990); see also Mark B. Wenneker, M.D. & Arnold M. Epstein, M.D., Racial Inequalities in the Use of Procedures for Patients with Ischemic Heart Disease in Massachusetts, 261 JAMA 253 (1989) 

135. FN135. Council on Ethical and Judicial Affairs, supra note 134, at 2344-45; see also Albert Oberman, M.D. & Gary Cutter, Ph.D., Issues in the Natural History and Treatment of Coronary Heart Disease in Black Populations: Surgical Treatment, 108 AM. HEART J. 688, 688-94 (1984) (discussing results of study showing a preferential selection of whites for coronary artery bypass grafting); cf. Charles Maynard et al., Blacks in the Coronary Artery Surgery Study (CASS): Race and Clinical Decision Making, 76 AM. J. PUB. HEALTH 1446, 1446-48 (1986) (finding that rate of bypass surgery could not be explained by differences in clinical or angiographic characteristics). 

FN136. Carol Stevens, System, Race and Suspicion Promote Medical Disparities, DET. NEWS, Dec. 10, 1995, at A11. Because studies show a strong correlation between a mother's weight gain and her baby's birthweight, experts now advise pregnant women to gain a minimum of thirty pounds. Id. However, the study showed most African American women were being told by their physicians to gain less than twenty-two pounds. Id. 

FN137. Id. 

FN138. Council on Ethical and Judicial Affairs, supra note 134, at 2345; see Carl M. Kjellstrand & George M. Logan, Racial, Sexual and Age Inequalities in Chronic Dialysis, 45 NEPHRON 257, 260 (1987) ("[I]n 3 of 4 categories, blacks received less dialysis than whites."). 

FN139. See Council on Ethical and Judicial Affairs, supra note 134, at 2345; Kjellstrand, supra note 138, at 260. 

FN140. Id.; see also Carl M. Kjellstrand, Age, Sex, and Race Inequality in Renal Transplantation, 148 ARCHIVES INTERNAL MED. 1305, 1307 (1988); Paul W. Eggers, Effect of Transplantation on the Medicare End-Stage Renal Disease Program, 318 NEW ENG. J. MED. 223, 229 (1988) (reporting that while African Americans accounted for thirty-three percent of patients with end-stage renal problems, they were only twenty-one of the patients who received kidney transplants). 

FN141. Stevens, supra note 136, at A11. 

FN142. Id. 

FN143. Council on Ethical and Judicial Affairs, supra note 134, at 2345; see also John Yergan, M.D. et al., Relationship Between Patient Race and the Intensity of Hospital Services, 25 MED. CARE 592, 600, 603 (1987) (suggesting that non-White pneumonic patients receive fewer services, especially with regard to intensive care). 

 

FN144. Council on Ethical and Judicial Affairs, supra note 134, at 2345; Yergan, supra note 143. 

FN145. Stevens, supra note 136, at A11. 

FN146. See JERRY E. BISHOP & MICHAEL WALDHOLZ, GENOME: THE STORY OF THE MOST ASTONISHING SCIENTIFIC ADVENTURE OF OUR TIME--THE ATTEMPT TO MAP ALL THE GENES IN THE HUMAN BODY (1990) (discussing the monumentous task of mapping the human genes); Julia Walsh, Reproductive Rights and the Human Genome Project, 4 S. CAL. REV. L. & WOMEN'S STUD. 145, 145-47 (1994). The "Human Genome Project" ("HGP") is a worldwide research endeavor with the goal of analyzing the structure of human DNA and determining the location of approximately 100,000 human genes. U.S. DEP'T OF HEALTH & HUMAN SERVICES, UNDERSTANDING OUR GENETIC INHERITANCE: THE U.S. HUMAN GENOME PROJECT (1992). The Department of Energy decided that the project was necessary in order to begin to understand the thousands of genetic diseases that afflict humans. The National Institutes of Health has joined the project and is the major source of funds for all biomedical research in the United States. Darryl Macer, Whose Genome Project?, 5 BIOETHICS 183, 184, 188 (1991). 

FN147. Walsh, supra note 146, at 147. 

FN148. Id. at 147-48; see also OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONG., PUB. NO. OTA-BA-373, MAPPING OUR GENES--THE GENOME PROJECTS: HOW BIG, HOW FAST? 24 (1988). 

FN149. Walsh, supra note 146, at 147-48. The Office of Technology Assessment lists a number of diseases for which companies are presently developing (or already have developed) DNA probes for diagnosis. This list includes sickle cell anemia, cystic fibrosis, Duchenne muscular dystrophy, Hemophilia B, Huntington's disease, and Down's syndrome (phenylketonuria). OFFICE OF TECHNOLOGY ASSESSMENT, supra note 148, at 57. 

FN150. Walsh, supra note 146, at 153. 

FN151. Id. at 151-53; Sumner B. Twiss, Problems of Social Justice in Applied Human Genetics, in GENETIC COUNSELING: FACTS, VALUES, AND NORMS 255, 255-62 (Alexander M. Capron et al. eds., 1979). But see James E. Bowman, Genetic Screening: Toward a New Eugenics?, in "IT JUST AIN'T FAIR": THE ETHICS OF HEALTH CARE FOR AFRICAN AMERICANS 165-181 (Annette Dula & Sara Goering eds., 1994) (defending the need for scientific inquiry even if abuses occur). 

FN152. Walsh, supra note 146, at 153-54. 

FN153. Id. at 157-58; Twiss, supra note 151, at 257. 

FN154. DOROTHY NELKIN & LAURENCE TANCREDI, DANGEROUS DIAGNOSTICS: THE SOCIAL POWER OF BIOLOGICAL INFORMATION 106-32 (1994). 

FN155. Gostin, supra note 67. 

FN156. See, e.g., Kathy L. Hudson et al., Genetic Discrimination and Health Insurance: An Urgent Need for Reform, SCIENCE, Oct. 20, 1995, at 391; Gostin, supra note 67, at 117-19. 

FN157. Patricia A. King, The Past as Prologue: Race, Class, and Gene Discrimination, in GENE MAPPING: USING LAW AND ETHICS AS GUIDES 94 (George J. Annas & Sherman Elias eds., 1992) (discussing the potential for correlations between genetic susceptibility to disease and group membership used to discriminate against racial and ethnic minorities). 

FN158. Id. 

FN159. Id. 

FN160. Id. In 1991, the United States contributed $136 million to the HGP, with $90 million coming from the National Institutes of Health and $46 million coming from the Department of Energy. Although the total cost of the HGP is currently unknown, it is estimated that the United States, who has so far contributed 50% of the total cost of the project, will contribute more than $3 billion over the next 15 years. U.S. DEP'T OF HEALTH & HUMAN SERVICES, UNDERSTANDING OUR GENETIC INHERITANCE: THE U.S. HUMAN GENOME PROJECT, supra note 146. 

FN161. See, e.g., Alfreda A. Sellers-Diamond, Disposable Children in Black Faces: The Violence Initiative as Inner-City Containment Policy, 62 UMKC L. REV. 423, 459-60 (1994) (citing SAMUEL F. YETTE, THE CHOICE: THE ISSUE OF BLACK SURVIVAL IN AMERICA 82, 249 (1971)). For instance, Dr. Frank R. Ervin and Dr. Lawrence Razavi conducted a research project that suggested that normal individuals and criminals could be distinguished genetically, as indicated by their fingerprints. Id. It was hoped that the tests for this defect would "serve as a screening device for men upon entry into the military or perhaps at the time they first entered the criminal justice system." Id. at 460. Although "the XYY theory for the association of abnormal fingerprints with an additional Y chromosome" was later discredited, there persists a popular belief in the theory. Id. 

Furthermore, there persists a popular belief in the relationship between race and intelligence. This belief was fueled by Dr. Arthur R. Jensen's "discovery" of the so-called genetic relationship between race and I.Q. Id. at 460 (citing Arthur R. Jensen, How Much Can We Boost IQ and Scholastic Achievement?, 39 HARV. EDUC. REV. 1 (1969)). According to Jensen, "African-Americans averaged about fifteen points below the average of Whites on IQ tests [suggesting] that this phenomenon was responsible for a difference in scholastic aptitude between the groups." Id. 

FN162. The Office of Technology Assessment has acknowledged the potential problems raised by eugenics programs, stating: 

The ethical debate about eugenic applications more properly focuses on how to use new information rather than on whether to discover it. Eugenic programs are offensive because they single out particular people and therefore can be socially coercive and threatening to the ideas that human beings have dignity and are free agents. 

OFFICE OF TECHNOLOGY ASSESSMENT, supra note 148, at 84. Susan Rae Peterson notes that genetic testing and prenatal diagnosis tend to depersonalize women and childbirth. Susan Rae Peterson, The Politics of Prenatal Diagnosis: A Feminist Ethical Analysis, in THE CUSTOM-MADE CHILD? WOMEN-CENTERED PERSPECTIVES 95, 101-02 (Helen B. Holmes et al. eds., 1981). 

FN163. See Alexander M. Capron, Containing Health Care Costs: Ethical and Legal Implications of Changes in the Methods of Paying Physicians, 39 CASE W. RES. L.R. 708 (1986) (concluding that the changes in access and delivery of health care in the United States must be justified ethically, as well as economically). 

FN164. See generally Vernellia R. Randall, Ethnic Americans, Long-Term Health Care Providers, and the Patient Self-Determination Act, in PATIENT SELF- DETERMINATION IN LONG-TERM CARE: IMPLEMENTING THE PSDA IN MEDICAL DECISIONS 126-27 (Marshall B. Kapp ed., 1994) (explaining how the Patient Self- Determination Act is a representation of one subculture alone: "European- American, middle-class, and middle-aged."). 

FN165. Id. 

FN166. Id. 

FN167. Capron, supra note 163. 

FN168. W.G. Manning et al., A Controlled Trial on the Effect of a Prepaid Group Practice on Use of Services, 310 NEW ENG. J. MED. 1505-10 (1984). 

FN169. See generally Randall, supra note 164. 

FN170. Id. 

FN171. Id. 

FN172. OFFICE OF INSPECTOR GENERAL, THE DISTRIBUTION OF ORGANS FOR TRANSPLANTATION: EXPECTATIONS AND PRACTICES 8 (1991). See generally Ian Ayres et al., Unequal Racial Access to Kidney Transplantation, 46 VAND. L. REV. 805 (1993) (discussing the access and distribution frequency of kidney transplants among racial groups); Bertram L. Kasiske et al., The Effect of Race on Access and Outcome in Transplantation, 324 NEW ENG. J. MED. 302-308 (1991) (finding that African Americans have a four-fold higher risk for end- stage renal disease--irreversible kidney failure--as well as a higher prevalence). 

FN173. HEALTH CARE FINANCING ADMINISTRATION, END STAGE RENAL DISEASE PATIENT: PROFILE TABLES (1988); Ayres, supra note 172, at 808-10. 

FN174. Ayres, supra note 172, at 810. 

FN175. Id. at 808. 

FN176. Id. at 809. 

FN177. OFFICE OF INSPECTOR GENERAL, supra note 172, at 11. Studies from New York, Los Angeles, Miami, and Washington D.C. document that Blacks were markedly underrepresented in donor statistics. Clive O. Callender, Organ Donation in the Black Population: Where Do We Go From Here?, 19 TRANSPLANTATION PROC. 36 (1987); Luis M. Perez et al., Organ Donation in Three Major American Cities With Large Latino and Black Populations, 46 TRANSPLANTATION PROC. 555 (1988) (noting that Black families were two to three times less likely to consent to organ donation than White families). 

FN178. J. Michael Soucie et al., Race and Sex Differences in the Identification of Candidates for Renal Transplantation, 19 AM. J. KIDNEY DISEASE 414 (1992) (concluding that race and gender differences persisted after controlling for the health status and socioeconomic factors of the patients). 

FN179. Ayres, supra note 172, at 809-10. 

FN180. Id. at 809. 

FN181. Id. (citing Clive O. Callender et al., Attitudes Among Blacks Toward Donating Kidneys for Transplantation: A Pilot Project, 74 NAT'L MED. ASS'N J. 807 (1982)); THE PARTNERSHIP FOR ORGAN DONATION AND THE ANNENBERG WASHINGTON PROGRAM, SOLVING THE DONOR SHORTAGE BY MEETING FAMILY NEEDS: A COMMUNICATIONS MODEL 4 (Oct. 30-31, 1990) (suggesting that requests for consent may be more effective if they came from persons of the same race); Orly Hazony, Increasing the Supply of Cadaver Organs for Transplantation: Recognizing That the Real Problem is Psychological Not Legal, 3 HEALTH MATRIX 219 (1993) (discussing historical perspectives on organ shortages, the current failure to meet existing needs for donations, suggestions for increasing awareness of the need, and differing approaches to grieving family members). 

FN182. Law & Order: Sonata for a Solo Organ (NBC television broadcast, Apr. 2, 1991). 

FN183. BYRD & CLAYTON, supra note 19, at 20. 

FN184. See generally id. 

FN185. Washington, supra note 42, at 1F. 

FN186. See generally Scott Simon, Sale of Human Organs Thriving in Some Parts of the World (National Public Radio broadcast, Nov. 27, 1993), available in 1993 WL 9415778. According to Colonel Yuri Dubiyegen, "Organ Transplantation is the most profitable business in Russia and it will grow. Everyone knows that you can get away with abducting people for a kidney or for any other organ and they're convinced the criminals can get off scot-free." Id.; see also Anthony Boadle, Film Exposes Black Market in Body Parts From Humans, SEATTLE TIMES, Nov. 12, 1993, at A14 (illustrating that commercial documents obtained by the makers of a documentary entitled "The Body Parts Business" showed that one Russian company "sold 700 kidneys, hearts and lungs, 1400 livers, 18,000 thymus glands, 2,000 eyes and 3,000 pairs of testicles, which are used for rejuvenating creams."). 

Christian Williams described the problem this way: 

"The variation between legal systems has allowed abuse of the simplest method of organ procurement--organ sales from live donors. This system is generally poorly regulated and fraught with health risks to both the donor and recipient. Often, it is the poorer citizens of developing countries who are supplying organs for the members of the upper class who can afford them, either directly or through organ brokers. However, when the organ, like any other valuable commodity, cannot be bought, it is stolen resulting in flagrant violations of human rights." 

Christian Williams, Combatting the Problems of Human Rights Abuses and Inadequate Organ Supply Through Presumed Donative Consent, 26 CASE W. RES. J. INT'L L. 315, 316 (1994). The fear is public in some parts of the world: "a major newspaper has described the buying of kidneys from impoverished donors for transplantation in private hospitals in Western countries. Some donations were coerced, some for meager fees . . . It seems clear that . . . the less privileged can be exploited to improve the health of the more privileged." Id. at 322 n.33 (citations omitted). Christian Williams advocates presumed donative consent as a method of combatting the problems of human rights abuses and inadequate organ supply. Id. at 359. 

FN187. Williams, supra note 186, at 359. 

FN188. Id. at 358-59. 

FN189. Rutherford, supra note 73, at 255. See generally Angela Y. Davis, Surrogates and Outcast Mothers: Racism and Reproductive Politics, in "IT JUST AIN'T FAIR": THE ETHICS OF HEALTH CARE FOR AFRICAN AMERICANS 41-55 (Annette Dula & Sara Goering eds., 1994) (discussing the political and social ramifications for allowing surrogate motherhood). 

FN190. "African Americans . . . are overrepresented [in industries such as] laundry and dry cleaning, tobacco manufacture, fabric mills, smelters, hospitals, and farmwork," all of which involve toxic substances that have been linked to cancer. Rutherford, supra note 73, at 277. 

FN191. 499 U.S. 187 (1991). The Supreme Court decided that Title VII of the Civil Rights Act of 1964 prohibits an employer from excluding all women of child-bearing capacity from certain jobs, even if the employer's goal is to prevent possible damage to potential or developing fetuses. Id. at 211. 

FN192. Rutherford, supra note 73, at 277-78. 

FN193. Id. at 278. 

FN194. DANA HUGHES ET AL., CHILDREN'S DEFENCE FUND, THE HEALTH OF AMERICA'S CHILDREN: MATERNAL AND CHILD HEALTH DATA BOOK 10 (1989). 

FN195. CHILDREN'S DEFENSE FUND, BLACK AND WHITE CHILDREN IN AMERICA: KEY FACT 76 (1985). 

FN196. Darci Elaine Burrell, The Norplant Solution: Norplant and the Control of African-American Motherhood, 5 UCLA WOMEN'S L.J. 401 (1995). "Norplant consists of six, match-sized, silicon tubes which release a steady stream of the synthetic hormone levnorgestill into the bloodstream to prevent pregnancy. The tubes are surgically inserted under the skin of a woman's arm and prevent conception for up to five years." Id. at 401 (citation omitted). 

FN197. Donald Kimmelman, Poverty and Norplant: Can Contraception Reduce the Underclass?, PHILA. INQUIRER, Dec. 12, 1990, at A18; see, e.g., Claude Lewis, Norplant Editorial Was Offensive: The Thrust of the Editorial was Aimed at the Black Underclass, Unjustly So, PHILA. INQUIRER, Dec. 21, 1990, at A19. In the article, Kimmelman proposes to use Norplant to break the "cycle of inner city poverty--one of America's greatest challenges." Id. 

The main reason more black children are living in poverty is that the people having the most children are the ones least capable of supporting them. . . . All right, the subject makes us uncomfortable, too. But we're made even more uncomfortable by the impoverishment of black America and its effect on the nation's future. 

Id. 

FN198. David S. Coale, Norplant Bonuses and the Unconstitutional Conditions Doctrine, 71 TEX L. REV. 189, 189-90 (1992); Dorothy E. Roberts, Norplant's Threat to Civil Liberties and Racial Justice, N.J. L.J., July 26, 1993, at 20. 

FN199. See, e.g., Tim Larimer, High School Offers Birth Control Implant, Blacks Disagree on Merits of Program, DALLAS MORNING NEWS, Mar. 17, 1993, at A37. The Laurence Paquin High School, a predominantly Black school for pregnant girls or girls who have already had babies in Baltimore, Maryland, was the first school to offer Norplant to teens. Sonya Live: Birth Control in Schools (CNN television broadcast, Feb. 11, 1993). 

FN200. Janet F. Ginzberg, Compulsory Contraception as a Condition of Probation: The Use and Abuse of Norplant, 58 BROOK. L. REV.. 979, 979 (1992). For example, the Ohio legislature introduced a bill which would amend the definition of "child neglect" to include drug use during pregnancy and which would require women twice convicted of this crime to use Norplant. See Deborah Ann Bailey, Comment, Maternal Substance Abuse: Does Ohio Have an Answer?, 17 U. DAYTON L. REV. 1019, 1032-33 (1992) (discussing OHIO REV. CODE ANN. ss 2151.03(A); 2919.221(B)(2)). 

FN201. Burrell, supra note 196, at 404. 

FN202. Id. at 416 (citations omitted). 

FN203. 42 C.F.R. ss 441.250-259 (1991) (sterilizations); 42 C.F.R. s 441.257 (1991) (informed consent); 42 C.F.R. s 441.258 (1991) (consent form requirements). 

FN204. Laurie Nsiah-Jefferson, Reproductive Laws, Women of Color, and Low- Income Women, in REPRODUCTIVE LAWS FOR THE 1990s 23, 46 (Sherrill Cohen & Nadine Taub eds., 1988). 

FN205. But see Rutherford, supra note 73, at 267. 

FN206. Id. (citing U.S. DEP'T OF HEALTH AND HUMAN SERVICES, PUBLIC HEALTH SERVICES, HEALTH STATUS OF MINORITIES AND LOW INCOME GROUPS 58 (1985) (reporting twenty-three percent of Black couples found infertile, compared to fifteen percent of White couples)). 

FN207. Id. at 268 n.56. 

FN208. Id. at 268 (citing CONGRESSIONAL CAUCUS FOR WOMEN'S ISSUES, THE WOMEN'S HEALTH EQUITY ACT OF 1990 18 (1990)). 

FN209. 42 C.F.R. s 59.5(a)(1) (1995). 

FN210. Rutherford, supra note 73, at 268. 

FN211. See generally Davis, supra note 189, at 41-55. 

FN212. Rutherford, supra note 73, at 268-69. The surrogate mother carries the fetus to term. Most arrangements are governed by a contract whereby the surrogate mother is paid a sum of money and agrees to relinquish all parental rights to the child. Id. "The 'rate' is normally between $10,000 and $15,000, and the surrogate is paired with the infertile couple either through a fertility agency or privately." Id. at 269. 

FN213. Id. However, other women of color, particularly women from Third World countries, may be exploited. Id. A chain of clinics in India, Jordan, Pakistan, Egypt, Malaysia, Singapore, and Taiwan has been set up by U.S. and Australian entrepreneurs. In vitro fertilization clinics in Brazil, India, Malaysia, and Indonesia have been established particularly for sex predetermination. Janice G. Raymond, Women as Wombs: International Traffic in Reproduction, MS. MAGAZINE, May/June 1991, at 28, 31. 

FN214. Rutherford, supra note 73, at 269-70. 

FN215. The case of Anna Johnson, an African American woman who gave birth to the child of a white husband and an Asian wife, highlights the conflicts. The California Court of Appeals ruled that genetics was the determining factor in parenthood. Anna J. v. Mark C., 286 Cal. Rptr. 369, 380-81 (Cal. Ct. App. 1991). 

FN216. Rutherford, supra note 73, at 272 n.86 (citing ANGELA Y. DAVIS, WOMEN, RACE AND CLASS 6-8 (1983) as stating: 

Since slave women were classified as "breeders" as opposed to "mothers," their infant children could be sold away from them like calves from cows. One year after the importation of Africans was halted, a South Carolina court ruled that female slaves had no legal claims whatever on their children. Consequently, according to this ruling, children could be sold away from their mothers at any age because "the young of slaves . . . stand on the same footing as other animals." 

(omission in original) (footnote omitted)). 

 

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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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 03/10/2010

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