Law  - Fall 2009
Racism, Health Disparities, and the Law
Professor Vernellia R. Randall
The University of Dayton School of Law

 Social Policy is Health Policy is Law

 


The Role of Law in Reducing Health Status Disparities
 

Rising Wealth Inequality: Why We Should Care

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"There is an Axis of Evil,  An Axis of Evil of inequality, of racism, of poverty, of economic deprivation
 that is adversely affecting the health of the American people." David Williams

 

  Syllabus
Philosophy of Teaching                                             x
Teaching Methods                                            x
Evaluation and Grading                                             x
Resources                                            x
Mechanics                                            x
Academic Accommodations
UD Academic Honesty                            x
Lesson Outline                                             x
   
Health Equity Search

 

Mary Anne Bobinski


Excerpted from: Mary Anne Bobinski , Health Disparities and the Law: Wrongs in Search of a Right, 29 American Journal of Law and Medicine 363, 370-380 (2003) (footnotes omitted)


What should the role of law be in reducing health disparities? Healthy People 2010 makes only occasional reference to the role of law in its discussion of goals, focus areas, leading indicators and objectives. Laws and regulations lurk in the background of discussions on topics such as access to care, environmental health, educational and community-based programs, and tobacco control. The document nonetheless recognizes that achieving gains in the length and quality of life will require participation by many groups:

      Healthy People 2010 seeks to increase life expectancy and quality of life over the next ten years by helping individuals gain the knowledge, motivation, and opportunities that they need to make informed decisions about their health. At the same time, Healthy People 2010 encourages local and state leaders to develop communitywide and statewide efforts that promote healthy behaviors, create healthy *371 environments and increase access to high-quality health care. Because individual and community health are virtually inseparable, both the individual and the community need to do their parts ....

The document also calls on a range of actors to assist in the goal of eliminating health disparities:

      Healthy People 2010 recognizes that communities, States, and national organizations will need to take a multidisciplinary approach to achieving health equity-an approach that involves improving health, education, housing, labor, justice, transportation, agriculture, and the environment, as well as data collection itself.

State and community leader might enact either budgetary or regulatory legislation to achieve these goals. What is-and what should be-the role of law in extending life or in eliminating health disparities?

A. THE ACCESS DILEMMA

It is fair to say that most health law scholars have sought to affect health by improving access to care, either through budgetary initiatives or regulatory adjustments. Despite the difficulties of applying "rights" based discourse to the problems posed by healthcare disparities, a number of creative scholars have sought to bend traditional law doctrines to the service of the elimination of healthcare disparities. Professor Gregg Bloche argues that racial disparities in the delivery of healthcare are particularly hard to address because in most situations physicians exercise clinical discretion. Bloche explores the relatively weak legal constraints imposed under tort, Medicaid, the Emergency Medical Treatment and Active Labor Act (EMTALA) and Title VI of the Civil Rights Act of 1964. Professor Bloche offers several recommendations for change, but these by and large focus on changes in medical practice rather than law. In addition, Bloche proposes tying government financial support of healthcare to adherence to standards of *372 practice which protect patients' access to care, strengthen the physician-patient relationship and reduce the segregation of the poor into under-funded public plans.

Professor Barbara Noah explores potential legal remedies for disparate care under Title VI, Equal Protection and other statutory claims. She suggests that there are substantial barriers to the use of traditional legal theories. Noah then articulates a number of extra-legal, prospective approaches to limiting disparities in healthcare, such as improvements in medical education. Similarly, Professor Dean Hashimoto argues that the emphasis on the possible passage of a federal "Patients Bill of Rights" will do little to assist the poor, who primarily are covered by public insurance plans. Hashimoto argues that the concept of "equal protection" should be used to extend similar protections to the poor.

Politicians of every persuasion also tend to focus on access to care issues, either favoring or opposing plans to expand Medicaid or CHIP, or to add prescription drug coverage to Medicare. Improving access to healthcare is undeniably important in its own right and may even help to reduce some healthcare disparities. But, if access to healthcare accounts for only ten percent of the health status of populations, then focusing the law on access cannot address the major determinants of health status. Can law have an even more powerful role in affecting the determinants of health?

B. ECONOMIC AND BEHAVIORAL DETERMINANTS OF HEALTH

Two major determinants of health involve behavior and socioeconomics. Fifty percent of health status is related to behavior, making this factor the most powerful single determinant of health status. The impact of behavior can be seen in the life expectancy and mortality data reviewed in Part II of this Article. Tobacco use alone is responsible for "more than 430,000 deaths per year among adults in the United States, representing more than 5 million years of potential life lost." Other health-related behaviors include alcohol/substance abuse, improper nutrition and risky sexual behavior.

*373 The perhaps unexpected influence of socioeconomic factors can be seen when comparing the data on life expectancy in the United States with that found in other countries. It is well established, for example, that the United States lags behind other countries in the length and quality of life. The life expectancy for women in the United States is lower than it is in eighteen other countries; in life expectancy for men, the United States ranks twenty-fifth.

The explanation, according to HHS, is that "[i]nequalities in income and education underlie many health disparities." Socioeconomic status, as measured either by income or level of education, is strongly correlated with health status. As noted in Healthy People 2010:

      [i]n general, population groups that suffer the worst health status also are those that have the highest poverty rates and the least education. Disparities in income and education levels are associated with differences in the occurrence of illness and death, including heart disease, diabetes, obesity, elevated blood level, and low birth weight. Higher incomes permit increased access to medical care, enable people to afford better housing and live in safer neighborhoods, and increase the opportunity to engage in health-promoting behaviors.

As if socioeconomic disparities in health were not serious enough on their own, they are also closely associated with racial and ethnic disparities in health. A greater proportion of non-whites than whites are likely to live below the poverty level. Less than ten percent of whites live below the poverty level, a little more than ten percent of Asian/Pacific Islanders live below this level and nearly thirty percent of African-Americans and Hispanics are impoverished. African-Americans and Hispanics are less likely than whites to have completed more than twelve years of education. Health disparities associated with socioeconomic factors thus have a disproportionate impact on the health of African-Americans and Hispanics.

Finally, a number of researchers contend that societies with greater inequalities in wealth are less healthy than societies with greater income equality. A new movement has adopted the view that this correlation implies causation-that there is something about social income disparities that affects the health of a population. Harvard School of Public Health Professors Ichiro Kawachi and Bruce P. Kennedy argue in a recent book that unbridled capitalism in the United States has led to *374 income disparities which negatively affect the health of our society. This argument has drawn a vigorous critique, but it appears to have influenced the Healthy People 2010's analysis of the determinants of health. It remains to be seen whether law in general and public health law in particular can be an effective tool in addressing behavioral and socioeconomic determinants of health.

C. BEHAVIORAL DETERMINANTS OF HEALTH, SOCIAL DUTIES AND PERSONAL RESPONSIBILITIES

1. General Principles

First, it is clear that public health officials are thinking about and implementing laws and regulations designed to change behavior. Professor Larry Gostin, the leading scholar of public health law in the United States, offers this definition of the responsibilities of public health entities:

      The mission of public health is broad, encompassing systematic efforts to promote physical and mental health and to prevent disease, injury, and disability. The core functions of public health agencies are to prevent epidemics, protect against environmental hazards, promote healthy behaviors, respond to disaster and assist communities in recovery, and assure the quality and accessibility of health services.

Interventions designed to affect health-related behaviors are sprinkled throughout Healthy People 2010. Yet, as some public health officials have noted there is the "thorn[y] question" of "whether chronic disease prevention is a legitimate role of government. Is preventing unhealthy behavior an appropriate subject for public policy and government action? Almost all public health officers would argue that it is, but doubts remain among many members of the public and many legislators."

*375 There are at least three important justifications for intervention. First, of course, is the possibility that intervention will reduce human morbidity and mortality rates. Second, government intervention may reduce disparities in health to the extent that behavior is found disproportionately within certain ethnic or racial groups. Third, government intervention may reduce current levels of government expenditures on health conditions related to human behavior. There are countervailing considerations.

First, as Professor Epstein notes, governmental interventions designed to affect human behavior may, depending on their form, limit free choice and impair liberty. Government prohibitions most clearly negatively impact individual liberty, but lesser forms of regulation can impair choice as well. A related concern is the problem of line drawing: which risky behaviors are sufficiently harmful to society to warrant regulation? Should the government prohibit the conduct, make the conduct less appealing through taxes or regulatory restrictions, or should the government facilitate safer versions of the risky behavior? Regulation might also give risk to claims of discrimination. Finally, governmental intervention may conflict with norms of personal responsibility and morality. The following sections will explore the tensions between these conflicting principles in three areas where individual behavior affects health status: tobacco use, intravenous drug use by persons infected with HIV and failure to maintain proper weight.

2. Regulation of Tobacco

As noted above, smoking imposes a significant cost on individuals and society. Smoking is also a significant factor in creating mortality disparities for persons of lower socioeconomic classes. Public health authorities advocate for laws-particularly state laws-which would directly and indirectly regulate smoking behavior. The Healthy People 2010 initiative includes twenty-one objectives related to the reduction of tobacco use, several of which involve creating stronger anti-smoking laws. In an unusual foray into state-level policy, HHS committed itself to *376 the objective of eliminating statewide anti-smoking laws that included provisions preempting more stringent local ordinances.

The Healthy People 2010 tobacco objectives are consistent with the promulgations of other public health groups. The Task Force on Community Preventive Services is a non-federal group appointed by the director of the Centers for Disease Control and Prevention (CDC) which evaluates the effectiveness and efficiency of various public health interventions. The Task Force reviewed and recommended the enactment of a number of different policies designed to decrease smoking behavior, including smoking bans and increases in the unit price of cigarettes.

A great deal of research data supports the efficacy of these two different types of initiatives. Bans on public smoking reduce the health impact of second hand smoke, make smoking more difficult (which encourages smokers to quit) and limit opportunities for minors to perceive and model smoking behavior. Increasing the cost of smoking stimulates smokers to quit. A ten percent price increase, for instance, can stimulate about a four percent decrease in the adult smoking rate.

The overwhelming weight of evidence supports the dangerousness of tobacco use, the disparate impact of use on minority communities and the costs of use for governmental payors. There is also strong evidence supporting the policy interventions promoted by public health authorities. Surprisingly, however, policy-makers have offered a mixed response to the requests of public health authorities. State bans on public smoking are actually more likely to preempt stricter local laws than before the Healthy People 2010 initiative. Increases in tobacco taxes appear more likely to occur only because most states face significant budgetary shortfalls.

3. Intravenous Drug Use and HIV

Between 800,000 to 900,000 people in the United States are infected with HIV. An increasing percentage of those individuals are African-American. There is a well known connection between intravenous drug use and HIV infection that is recognized in Healthy People 2010. Needle exchange programs are one method of reducing the risk of HIV transmission through the use of shared needles, but Healthy People 2010 does not explicitly endorse the adoption of needle exchange policies. *377 Other policies, such as the deregulation of needle sales, can also improve access to clean and safe needles.

What explains the Healthy People 2010 document's relative silence about needle exchange and needle sale policies? In this case, good public health policy (improving access to clean needles to prevent the transmission of HIV) also conflicts with widespread beliefs about the best method of combating drug addiction (making it as difficult as possible to use drugs). Many legislators are hostile to the idea of easing needle distribution policies because they believe that the policies implicitly condone drug use. The personal responsibility and moralistic paradigms for behavior control have dominated over the more utilitarian public health approach.

4. Obesity

The Healthy People 2010 project devotes a substantial section of analysis to the problems of "nutrition and overweight." Separate, but related, focus areas address diabetes, physical activity and fitness. The report cites "an alarming increase in the number of overweight and obese persons." People who are overweight or obese are alleged to be at heightened risk for a variety of serious and life-threatening illnesses. The problem may "cost society over $200 billion each year in medical expenses and lost productivity." There are also racial and ethnic disparities in the prevalence of overweight and obesity. Finally, the growing prevalence of obesity in children and adolescents raises additional concerns.

The Healthy People 2010 report's obesity objectives seem most consistent with a personal responsibility paradigm for obesity. The report notes the importance of *378 "[e]stablishing healthful dietary and physical activity behaviors ... in childhood" and the importance of nutritional education for children and adults. Restaurants and other food suppliers "also can help consumers ... by providing nutritional information," which implies that informed consumers are willing and able to make wise choices.

Compared to the tobacco objectives, the Healthy People 2010 obesity objectives focus on results rather than publicly-directed strategies for obtaining those results. There are no calls for state legislation, for example. While the report recognizes the growing importance of childhood obesity, governmental entities or private parties are not given any special responsibility to protect children from risky foods. Despite the concerns of Professor Epstein, the public health authorities are not yet poised to use "state coercion" to protect people from themselves or to promote better practices in the food industry. At most, public health authorities who developed Healthy People 2010 seem interested in increasing mandatory physical education programs in schools. For the moment at least, advocates for the use of law to fight obesity are largely found outside the public health community.

*379 D. SOCIOECONOMIC INEQUALITY

Socioeconomic disparities undoubtedly have a huge impact on disparities in health status. As noted above, mortality and morbidity vary with household income and education. Those with lower incomes or less education are less healthy and live shorter lives. Those with lower socioeconomic status are less likely to have access to healthcare. They are more likely to engage in behaviors, such as smoking, which increase morbidity and mortality. They are more likely to be members of minority groups who suffer from disparate treatment in healthcare. Finally, some research suggests that lower socioeconomic status is itself an independent variable associated with poorer health status.

Healthy People 2010 notes the importance of socioeconomic factors in establishing life expectancy and mortality rates from various diseases. The report suggests that socioeconomic factors account for a significant percentage of the perceived disparities in care which the project hopes to eliminate by 2010. Yet Healthy People 2010 does not devote significant attention to socioeconomic factors in its focus areas and objectives. Public health authorities may believe that socioeconomic factors are linked to disparities in health, but they appear unable or unwilling to confront the consequences.

At least some members of the social determinants of health movement believe that the data on socioeconomic impact is sufficiently clear to require action. They concede that action "involves ethical and political choices" and will require the development of "shared values." Interventions must span every level of society.

Yet, after reviewing both the success and failures of legal approaches to behavioral health issues, one is left doubtful about the use of legal doctrines to *380 address socioeconomic disparities. As Professor Bloche has noted, our society may abhor disparities in health related to race, but it tolerates disparities in health status caused by socioeconomic factors:

      Notably missing from the national political agenda, though well documented in the research literature, are the larger problems of population-wide racial gaps in health status and access to medical care .... Universal health insurance coverage would greatly reduce racial differences in health care access that result from disparities in ability to afford coverage, yet universal coverage has been off the American political agenda since the collapse of the Clinton administration's reform plan in 1994 .... Why has racial bias in the clinical judgments physicians make on behalf of equivalently insured and socioeconomically situated Americans generated a greater political response than has the racially unequal impact of allowing more than forty million Americans to go without medical coverage? And, why have racial disparities in health status ... received less attention? The answers to both questions, I suspect, implicate our national tolerance for socio-economic inequality as a factor in disparities we deem unacceptable when they result purely and simply from racial bias.

A nation that cannot muster the wisdom and political will to find health coverage for our forty million uninsured is unlikely to take more aggressive action to reduce broader socioeconomic disparities in health.

 
 
Lessons
01 Defining Health                             x
02 Health Disparities                                   x
03 Health Policy & the Law
04 Wealth Inequalities                                  x
05 Racial Inequality                            x
05 Racial Inequality                            x
06 Physical Environment
07 Health Care Disparities                                  x
08 Pulling it together                                              x
 

 

 
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Home ] Syllabus ] Defining Health ] Disparities and Social Determinants ] Health Law and Policy ] Removing  Income and Wealth Inequalities ] Improving Racial Inequality ] Eliminating Health Care Disparities ] Pulling It All Together ]
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Vernellia Randall.  All Rights Reserved

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