A conversation with
Kimani Paul-Emile
Youngjae Lee: You have written widely about race and health. How did you become interested in this set of topics?

Kimani Paul-Emile: My interest in theorizing law, race, power, and regulatory decision-making stems from my legal studies, doctoral graduate work, and experience practicing civil rights law at the Center for Constitutional Rights and the Brennan Center for Justice. While at CCR, I worked on a case in which pregnant, substance-addicted women were arrested and prosecuted under child endangerment laws when they sought prenatal and obstetrical services at the Medical University of South Carolina. The hospital’s policy applied only to those addicted to cocaine even though the use of alcohol or tobacco during pregnancy poses a far greater threat to the health of a developing fetus. The policy also singled out low-income black women: a population long and woefully underserved by the health-care community.

The case, Ferguson v. City of Charleston,1 was argued successfully before the United States Supreme Court; however, the Court based its decision on narrow 4th Amendment search-and-seizure grounds and all but ignored the important and troubling sex and race discrimination concerns raised by the case. This inability of the law to adequately address biomedical ethics and intersectional racial equality matters inspired my decision to pursue a doctoral degree and prompted me to direct my research towards examining issues that occur at the nexus of bioethics, race, structural inequality, and the law.

The law often falls short when called upon to address racial equality concerns that arise in the bioethics and health-care contexts.
YL: Could you elaborate on what you mean when you say the law fails to adequately address “biomedical ethics and intersectional racial equality concerns”? First, how would you define biomedical ethics?

KPE: Biomedical ethics is concerned primarily with the legal, political, and ethical issues that emerge from medicine, biotechnology, biomedical research, and life sciences, such as reproductive technology, genetic screening, human experimentation and research, organ transplantation and allocation, and the relationship between patient and healthcare provider. In practice, the law often falls short when called upon to address racial equality concerns that arise in the biomedical ethics and health care contexts. This is due in part to the Supreme Court’s race jurisprudence, which requires plaintiffs to prove that perpetrators acted with malicious intent, which misses many common types of discrimination in the health care setting—such as implicit bias and stereotyping—and it does not begin to address structural inequality. Another example is Title VI of the 1964 Civil Rights Act. It’s the statutory antidiscrimination provision that most directly applies to health care and it’s been interpreted narrowly by the U.S. Supreme Court, which has held that no private right of action exists to enforce Title VI regulations that allow for disparate impact litigation. As a result, the Department of Health and Human Services’ Office of Civil Rights has exclusive authority to enforce the statute’s disparate impact provisions, and private litigants must pursue exceptionally difficult claims of intentional discrimination.

YL: So, what do you think is a better way of approaching these issues, if not through law?

KPE: Along with conceptualizing law as a set of formal tools, as is often necessary in legal practice, I use a broad-based interdisciplinary approach to understanding and addressing discrimination and inequality along a number of vectors, including race, gender, and disability, among others. Thus, I use mixed methodologies, such as legal doctrinal analysis, critical race theory, and quantitative research methods, to surface the concerns ignored, obscured, exacerbated, or created by law; and then offer recommendations for how these concerns can be better addressed through law or other means. My work has used this approach to examine issues of discrimination and inequality in several contexts, including the regulation and criminalization of drugs (“Making Sense of Drug Regulation”), and the use of racial categories in biomedical research (“The Regulation of Race in Science”) and in the physician-patient relationship (“Patients’ Racial Preferences and the Medical Culture of Accommodation”).

YL: Could you explain what racial issues may arise in the physician-patient relationship?

KPE: One example is whether hospitals should abide by a patient’s racial biases as exemplified by the accommodation of a white patient who rejects a Black doctor on the basis of her race, or an elderly Korean patient’s desire to deny Japanese American physicians the opportunity to treat his illness. For years, physicians and hospitals have yielded to patients’ requests for physicians of a race different from the one assigned, and have done so without scrutiny of the legal, clinical, and ethical implications of their actions. This widespread practice raises difficult questions about how we should think about race, health, and individual autonomy in the hospital context, and poses a fundamental dilemma for law, medicine, and ethics. At first glance, anti-discrimination law and general racial equality principles would seem to bar the culture of accommodation in the hospital setting. I argued in an article that the law does and should allow for this practice under some limited circumstances, and that there are sometimes good reasons for hospitals to indulge patients’ requests for same-race physicians. Drawing from literature on evidence-based medical practices demonstrating that some patients, particularly minority patients, benefit—in terms of medical outcomes and ultimate satisfaction—from interactions with racially or ethnically concordant physicians, my article “Patients’ Racial Preferences and the Medical Culture of Accommodation” shows that accommodating some patients’ requests may constitute an effective means of alleviating race-based health disparities, improving health outcomes, and achieving racial equality in health care. I further explore these issues in my co-authored follow-up article, “Dealing with Racist Patients,” where we offered guidelines for balancing the interests of patients, providers, and health-care institutions in situations where patients reject physicians based on their identity characteristics, such as race, sex, ethnicity, gender presentation, etc.

YL: What are you working on now?

KPE: My current book project weaves together several strands of my research interests, specifically my interest in drug policy and in exploring alternative frameworks for addressing the causes and consequences of structural racial and gender-based inequality. I am examining how lawmakers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon. Thus, I examine how power and knowledge operate in our system of drug regulation and how this system has assumed its current characteristics by analyzing the institutions, ideas, and corresponding organized practices that drive regulatory decision-making. In so doing, I investigate: how this type of regulation has become so fluid, multidimensional, and pervasive; how different social spaces, substances, and individuals are conceived of and structured as open to regulation; the historical discontinuity in this phenomenon; and what the various regulatory mechanisms employed in this policy regime can tell us about the aims and concerns of government.

1Ferguson v. City of Charleston, 532 U.S. 67 (2001)
Scholarship Excerpt
The Oxford Handbook of Race and Law in the United States, Oxford University Press, forthcoming 2020