Race and Health Law
The Oxford Handbook of Race and Law in the United States, Oxford University Press, forthcoming 2020
Several citations have been removed for brevity. Readers will find a complete list of references in the published chapter.
Kimani Paul-Emile
Since the founding of the United States as a slave-owning and settler nation, race has been a factor in individual and population health. Race plays a role in who gets care, the quality of the care received, and who remains sick while others are healthy. Health law has operated to create, perpetuate, and, at times, alleviate these effects. A wide-ranging category, health law includes public health law and healthcare law. Public health law’s scope is broad, encompassing a diverse array of policies, strategies, and protocols, including disease testing, quarantine, contact tracing, mandatory treatment, and vaccinations, among many others. Healthcare law focuses on the relationship between healthcare providers and their patients, and is shaped by concerns about the obligation to provide care, the liability of healthcare institutions and providers; informed consent; and health insurance, including issues of access, equity, choice, cost, and quality. As this chapter demonstrates, both healthcare law and public health law have implications for race, particularly racial formation, racial inequality, and racial justice.
Race, Health Law, and Health Disparities
According to current government statistics, Black infants in the U.S. are more than twice as likely to die than their White counterparts, and Black women are three to four times more likely than White women to die from pregnancy related causes. For decades, researchers struggled to make sense of this phenomenon. Some initially attributed the disparity to differences in education and socio-economic status. Data, however, showed that “a black woman with an advanced degree is more likely to lose her baby than a white woman with less than an eighth grade education.” Researchers then surmised that genetics might offer an answer, but an innovative study published in the New England Journal of Medicine proved otherwise. Comparing the health outcomes of Black American women and their infants, with new mothers from vastly under-resourced West African nations; the researchers found that the immigrant women and babies fared significantly better. The babies had higher birthweight, a common indication of health. And the immigrant mothers and their babies had birth outcomes that were comparable to White American mothers and babies. Within only two generations, however, differences began to appear. In a subsequent study, the same researchers found that the daughters of African and Caribbean immigrants who had been raised in the U.S. bore babies that were smaller than their mothers had been at birth. In comparison, the grandchildren of White women who had immigrated from Europe actually had a higher birthweight than their mothers. The researchers arrived at a conclusion that is now accepted as a stunning medical truth: the lived experience of race in the U.S. can be detrimental to one’s health. And this problem is not unique to Black women and children, but extends to Black men, as well as women, men, and children from other racial and ethnic minority groups.

Although good health is necessary for employment, civic participation, and social engagement, race remains a primary determinant of population health. U.S. government statistics have long documented pervasive race and ethnicity based health disparities, dating back to the colonial era. Health disparities are differential health outcomes, including differences in disease burden (incidence and prevalence), disability, mortality, and other adverse health conditions experienced by one population group relative to another. These enduring racial disparities begin at birth for Black and Brown people. Black infants experience the highest rate of infant mortality, while the rate for Native American infants is 60 percent higher than that of Whites. Black and Brown people experience higher incidence of chronic disease and premature death compared to Whites; and although cancer and heart disease are the leading causes of preventable death in the U.S., Blacks are 30 percent more likely than Whites to die from these conditions. Black and Native American women have a higher chance of dying from cardiovascular disease than Whites, while Black men’s chances of dying from stroke are double that of White men. In short, minority populations tend to “live sicker and die quicker.”

Despite its profound impact on health outcomes, race is not a biological or genetic category. The conception of race that is familiar in the U.S. was established at the dawn of the republic to make sense of the country’s stated ideals of freedom and equality with its displacement and attempted extermination of indigenous people, enslavement of captured Africans and their descendants, and systematic subordination of non-White people. Thus, “the races” were created to reconcile the irreconcilable. Race in the U.S. has historically been defined by skin color, culture, national origin, language, social or socioeconomic class, or an amalgamation of all these traits. Race is a social construct, which means that racial categories, the meaning attached to these categories, and the determination of which individuals will be assigned to these categories are all driven by social, cultural, and historical practices. Particular social meanings (e.g., stereotypes and attitudes) are ascribed to these constructed racial categories, which informs the way individuals and groups are perceived. Both the categories and their meanings can change over time.

In the American racial hierarchy, Whites have historically occupied the top position, and people of color have been ranked below, with Blacks at the very bottom. The resulting racial stratification and ongoing overt bigotry, implicit bias, institutional discrimination, and structural inequality can each have an adverse impact on health, contributing to differences in population health among groups and influencing the very idea of race itself. Indeed, what we understand as racial categories have been shaped and reshaped by laws that regulate health, which have served as both a means of addressing and perpetuating health disparities and racial inequality.

Public Health Law, Inequality, and Racial Formation
Ensuring the health and welfare of citizens is one of the foundational aims of government in the U.S., and this goal is facilitated by the enactment and enforcement of public health laws. In contrast to healthcare law, which focuses on the relationship between patient and healthcare provider, public health laws in the U.S. seek to promote and protect health and well-being at the population level while guarding against injury and the transmission of disease. The challenge for public health law is balancing individual autonomy against the state interest in safeguarding population health. Thus, it seeks to ensure that the state does not use its sweeping public health authority to over-reach and undermine personal liberty. The scales in this balancing, however, have often been tipped against racial minorities as American public health laws have often worked to create and reinforce perceptions of racial minorities as manifestations of biological infirmity, illness, and contagion.

Early European settlers, for example, did not view the near decimation of many Native American populations by diseases that the settlers introduced—such as influenza, measles, and small pox—as a consequence of Native Americans’ limited immunity to the new illnesses or to systematic inequality attendant to their forced removal from their ancestral lands. Rather, they claimed that the deaths of scores of indigenous people was simply the Lord’s divine intervention to clear the land for Europeans (which conveniently justified colonization). These apologists argued that the genocide of indigenous people was either “the contingent product of the difficult transition from primitive life to civilization” or was evidence of Native Americans’ racial inferiority. Such rationales influenced public health efforts as early public health campaigns aimed at Native American communities were often chronically underfunded and largely ineffective. Thus, although mortality rates for tuberculosis in 1925 were 87 per 100,000 people among the general population; among Native Americans, the rate jumped to 603 per 100,000, and as high as 1,510 per 100,000 in Arizona. Nevertheless, salaries for government-funded physicians in the Navy, Army, and Indian Health Services were apportioned as follows: $48.10 per sailor, $21.91 per soldier, and $1.25 per Native American.

During slavery, plantation owners generally devalued Black people’s humanity, but, counterintuitively, were still concerned about Black health because they needed enslaved people to be healthy enough to work on plantations to generate profits. After the Civil War, however, Southern White leaders worried about Black people being too healthy, or at least so healthy that they could compete for political representation, rebel, revolt, or in any way threaten the prevailing racial hierarchy. When, for example, small pox outbreaks devastated the communities of newly emancipated African-Americans, affecting thousands, public health authorities refused to intervene despite their awareness that the spread of the virus could be controlled through quarantine and vaccination: tools they had used to protect the Union Army. And although Blacks’ general mortality rate was significantly higher than that of Whites due to discrimination and neglect, legislators refused to make free or low cost health services available to them, arguing that to do so would lead to dependence, and that hard labor was a more effective remedy than medical intervention for the conditions affecting this population. As increasing numbers of Blacks succumbed to illness and disease, the official explanation became that Blacks were “ill-suited to freedom” and destined for extinction. As one Ohio Congressman declared, “No charitable black scheme can wash out the color of the Negro, change his inferior nature or save him from his inevitable fate.”

Likewise, increasing immigration at the Southern U.S. border stirred xenophobic resentment during the early 20th century and prompted unfounded claims that Mexicans were not only unassimilable and racially inferior, but also carriers of disease. The general sentiment, as articulated by a public health official at the time, was that, “[e]very individual hailing from Mexico should be regarded as potentially pathogenic.” Thus, public health regulations were used to shape immigration policies even before the 1924 advent of the Customs and Border Control Agency; and passage of the 1917 Immigration Act, which sought to exclude immigrants deemed undesirable and targeted Asian immigrants in particular.

During a 1916 typhus outbreak, for example, the U.S. Public Health Service subjected Mexican immigrants to invasive, unsafe, and demeaning baths and physical examinations, while Texas quarantined Mexican laborers at the U.S.-Mexico border. Similarly, Los Angeles public health authorities quarantined Mexican railroad workers amid concerns about their purported inadequate personal hygiene and propensity toward disease in lieu of addressing the structural problems that caused their circumstances, including the unsanitary living and working conditions that the railroad companies that employed them created and maintained. As Natalia Molina notes, “this preference for making race the organizing principle for understanding typhus also transformed Mexicans from unfortunate victims of a serious disease into active transmitters of deadly germs, thus adding a medicalized dimension to existing nativism.”

Public health officials also forged “Asian” as a racial identity in the U.S., in relation to disease. This is exemplified by the law that sparked the landmark case, Wong Wai v. Williamson. There, the Circuit Court for the Northern District of California in 1900 enjoined the city of San Francisco from enforcing a municipal board of health resolution prohibiting all Chinese residents from traveling outside the city without proof of vaccination against bubonic plague. Although there was no evidence that Chinese residents were more likely than others to carry plague, the resolution nevertheless applied only to this population. While acknowledging the city’s public health authority, the court ruled that it could not be exercised in such a broad and discriminatory manner, finding the city’s actions to be:

not based upon any established distinctions in the conditions that are supposed to attend this plague, or the persons exposed to its contagion, but they are boldly directed against the Asiatic or Mongolian race as a class, without regard to the previous conditions, habits, exposure to disease, or residence of the individual; and the only justification offered for this discrimination was…that this particular race is more liable to the plague than any other. No evidence has, however, been offered to support this claim, and it is not known to be a fact.
The idea of racial minority groups as transmitters of disease has been stubbornly persistent. In 2020, as the Coronavirus (COVID-19) pandemic gripped the U.S., President Donald Trump dubbed the virus the “kung flu” and the “the China plague”; and persons of Asian descent, including healthcare workers and first responders, were subject to stigma and discrimination due to unfounded fears that they were more likely to be carriers of the coronavirus. The Trump administration also invoked its public health authority to curtail immigration and impose border restrictions, which affected primarily those seeking to cross the U.S. border with Mexico. Members of the Trump administration referred to these migrants “as potential vectors of disease” and the administration’s anti-immigration efforts resulted in the separation of family members crossing the southwestern border, the rejection of unaccompanied children and teenagers, asylum seekers being forced to wait in “squalid camps” in Mexico, and the denial of green card applications from poor immigrants.
Segregation, Civil Rights, and Healthcare Law
After emancipation, Blacks were largely excluded from healthcare services and institutions, which were reserved primarily for Whites. Due, in part, to political pressure from newly emancipated African Americans, local governments eventually began creating segregated health care services. This discriminatory treatment and state-sanctioned racial segregation of health services was endemic in the U.S. until well into the 1960s. Black physicians were excluded from membership in the American Medical Association and jobs at White hospitals, while Black students were barred from medical schools, and Black patients were denied access to “Whites only” healthcare facilities or were provided inferior care in under-resourced, Blacks-only wards. The ward for Black people in the Wilmington, North Carolina community hospital, for example, contained “only 25 beds and two toilets in a building separated from the main building so that surgery patients had to be transported across an open yard.” And in Broward County, Florida, neither the public nor private hospitals would admit as patients any of the county’s more than 30,000 Black residents. In many states during this period, even Blacks with insurance coverage or the ability to pay were denied access to medical care or were steered to racially segregated facilities.

This system of segregation meant that in emergency situations, Blacks denied entry to Whites-only hospitals were forced to travel long distances to facilities willing to accept them. Not surprisingly, many died en route, including Juliette Derricotte, Dean of Women at Hampton and Fisk College and former executive of the national YWCA. In 1931, Derricotte required emergency care after sustaining injuries from a car accident. Because the nearest hospital accepted “no Negroes,” an ambulance had to drive her 66 miles to a facility willing to treat Black persons. She died of her injuries before receiving medical care.

Racial segregation was further entrenched by the 1946 Hill-Burton Act, which allowed federal funds to be used to construct Whites-only hospitals so long as other healthcare facilities were available to treat Black people. Funneling millions of tax dollars to states, the law subsidized segregated hospitals and nursing facilities, thereby increasing inequality and institutionalizing the country’s racial caste system. The damaging effect of the Hill-Burton Act was compounded by the fact that the physician-patient relationship was governed by the common law freedom of contract, which enabled physicians to decide whether or not to treat any prospective patient.

To address some of these concerns, in 1964, Congress enacted Title VI of the Civil Rights Act, which prohibits discrimination on the basis of race, color, or national origin by any program receiving federal financial assistance. President John F. Kennedy, in support of Title VI, declared, “[s]imple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination.” Accordingly, the statute mandates that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

Title VI regulations provide even more protection by recognizing that discrimination can occur in the absence of intentional wrongdoing. Thus, Title VI regulations prohibit disparate impact discrimination: facially neutral policies or practices that disproportionately burden individuals on the basis of race, color, or national origin. Sanctions for violations of Title VI are significant and include withdrawal of all federal funds from the entire offending healthcare institution.

The passage of the Medicaid Act in 1965 gave Title VI some teeth. Enacted as an amendment to the Social Security Act, financed through state and federal taxes, and administered by the states, Medicaid reimburses physicians, hospitals, nursing homes, and other health care facilities for the care they provide to the indigent. With Title VI banning discrimination by healthcare facilities receiving federal funds, and the Medicaid Act ensuring that virtually all hospitals and nursing homes received federal funds, the laws together had the potential to meaningfully address discrimination in healthcare.

Title VI’s impact was swift, eradicating state-sanctioned segregation in hospitals and beginning the process of reducing incidents of overt discrimination in the provision of medical care. However, several significant congressional, administrative, and judicial decisions severely undermined the statute’s potential. Congress, in a move intended to appease Southern Senators, excluded private physicians from Title VI’s reach. The Johnson administration removed Medicare payments to private physicians from Title VI coverage. Courts routinely ruled that office-based physicians were not “public accommodations” subject to civil rights laws, even when they offered services to the public. Moreover, regulators considered hospitals to be in compliance with the statute even when they gave admitting privileges to physicians who discriminated against members of racial and ethnic minority groups or demonstrated a preference for physicians who engaged in discriminatory conduct over those who did not. Further, the U.S. Supreme Court interpreted Title VI narrowly, holding that no private right of action existed to enforce Title VI regulations that allow for disparate impact litigation. Thus, the Department of Health and Human Services’ Office of Civil Rights (OCR) was granted exclusive authority to enforce the statute’s disparate impact provisions, compelling private litigants to pursue exceedingly difficult claims of intentional discrimination. As a result, Title VI enforcement has been inconsistent since it depends upon the priorities of political authorities. This has led to criticism that OCR “takes inordinate amounts of time to complete complaint investigations” and lacks “an effective and comprehensive system for monitoring corrective action commitments.”

Although Title VI has been successful at curtailing overt discrimination, it has not been as effective at addressing less explicit forms of racial discrimination, such as implicit bias, stereotyping, and prejudice. For example, even after passage of Title VI, some patients continued to be turned away from hospitals on the basis of their indigency. In 1986, as a means of preventing hospitals from rejecting patients or denying them care due to their real or perceived inability to pay—often a proxy for race or ethnicity—Congress enacted the Emergency Medical Treatment and Active Labor Act (EMTALA). The EMTALA creates a limited duty to provide stabilizing medical care in emergency situations to all patients in need. Although this “anti-patient dumping” statute does not mention race, it has racial equality implications to the extent that its plain language covers anyone who presents at a hospital emergency department and is denied or given a substandard medical screening.

Health Insurance and Racial Equity
Antidiscrimination principles can also be found in the landmark Patient Protection and Affordable Care Act (ACA), which brought health insurance to an estimated 20 million Americans. Signed into law in 2010 by President Barack Obama, the ACA increased private health insurance options for those able to cover at least part of the cost by requiring and subsidizing uninsured individuals to purchase private health insurance. The law also expanded Medicaid coverage for the poor. Both of these changes were critically important because lack of insurance, more than any single demographic or economic factor, is the dominant contributor to racial health disparities and negatively affects the quality of the health care that minority populations receive. As the only high-income country in the world that does not offer its citizens universal health coverage, the U.S., prior to passage of the ACA, had an estimated 48.6 million uninsured individuals, more than half of whom were racial minorities.

The ACA not only increased access to healthcare for many citizens, but it also offered more expansive protection from discrimination than Title VI, covering federally-funded health insurers, both private and public, including Medicaid, Medicare, and many employer-sponsored insurance plans. To document and reduce race-based health disparities and racial segregation in health services, the ACA requires healthcare providers and insurers to collect and report data on the race, ethnicity, and languages of the patient populations that they serve.

Most notably, the ACA has a healthcare civil rights provision, Section 1557, which broadly proscribes discriminatory disparate treatment as well as disparate impact discrimination by health insurers and federally-financed healthcare programs and activities. Section 1557 prohibits “denying, cancelling, limiting, or refusing to issue or renew a health-related insurance plan or policy or other health-related coverage on the basis of an enrollee’s or prospective enrollee’s race, color, national origin, sex, age, or disability, and the use of marketing practices or benefit designs that discriminate on these bases.”

Despite these improvements and the increased insurance coverage that the ACA provides, the U.S. healthcare system remains the most expensive in the world by wide margins, and many individuals remain without insurance coverage. U.S. citizens still do not enjoy a right to health care, and the ACA does not cover undocumented individuals. In addition, although the ACA expanded Medicaid to all citizens with annual incomes at or below 138% of the poverty level ($17,608 for an individual in 2020) racial disparities related to lack of health insurance coverage endure. Today, among adults aged 18–64, the uninsurance rate is still significantly higher for Latinx (20.1%) and non-Latinx Blacks (12.2%) as compared to non-Latinx Whites (7.8%).

Moreover, most private physicians do not take Medicaid patients, or they limit the number that they will accept. Some medical centers even maintain separate clinics for Medicaid patients. Such physician conduct has a disparate impact on racial minorities because most of those covered by private health insurance in the U.S. are White, while a disproportionate number of those insured by Medicaid are Black and Brown. In addition, the patients of those physicians who do accept Medicaid are more likely to experience long wait times and often receive inferior care.

Some private health insurers have been found to segregate Black and Brown patients from others seeking medical treatment through exclusionary business practices. According to Sydney Watson, “health insurers avoid selling private plans in minority neighborhoods because residents tend to be sicker, less educated, poorer, and thus they are more risky to insure…[These health insurers] offer one set of plans and networks to privately insured patients and a different set for those with Medicaid.”

In addition, not all states have chosen to participate in the ACA’s Medicaid expansion, including several former Confederate states. Some states have also adopted arduous work requirements for Medicaid eligibility. Reminiscent of specious, post–Civil War era claims that the availability of free or low-cost health services for Blacks would breed dependence and that hard labor would better serve their needs, these onerous work requirements disproportionately affect Black and Brown people. Thus, although the ACA significantly expanded healthcare access in the U.S., it did not dismantle racial segregation in the nation’s health insurance system.

Current Challenges in Healthcare Law:
Physician and Patient Interpersonal Discrimination
Discriminatory treatment of racial and ethnic minority patients by healthcare providers is well documented and was chronicled in the Institute of Medicine’s seminal report, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care, which found that racial and ethnic minority populations in the U.S. are not only less likely than Whites to receive preventative medical care, but also typically receive lower quality health services. Based on an extensive body of research, the report demonstrated that even after accounting for income, age, health insurance status, neighborhood, severity of condition, and comorbid illnesses, racial and ethnic minorities had consistently worse health outcomes when compared to Whites and were less likely to receive even routine medical procedures. Indeed, Black and Brown individuals receive lower quality care than non-Latinx Whites on approximately 40% of quality measures. As noted by Khiara Bridges,
[B]lack patients with heart disease received older, cheaper, and more conservative treatments than their white counterparts. Black patients were less likely to receive coronary bypass operations and angiography. After surgery, they are discharged earlier from the hospital than white patients—at a stage when discharge is inappropriate. The same goes for other illnesses. Black women are less likely than white women to receive radiation therapy in conjunction with a mastectomy. In fact, they are less likely to receive mastectomies.
Some commentators have noted that this type of discrimination is difficult to eradicate since “medical care is rendered under the kind of constraints—time pressures, brief encounters, and the need to manage complex, cognitive tasks—that are likely to enhance reliance on negative stereotyping because there is simply not enough time available to get to know each patient.”

Discriminatory treatment in medicine, however, goes both ways. Some hospital patients discriminate against their assigned healthcare provider and this phenomenon disproportionately affects Black and Brown providers. This patient conduct can involve insulting the unwanted healthcare provider or refusing treatment from the provider altogether and requesting to be reassigned to someone else who fits the patient’s racial preferences. Consider, for example, the patient in an emergency department who demands reassignment, claiming that he wants to be treated by a “White doctor” instead of an African American physician. This patient behavior can have significant negative consequences. It not only undermines the physician-patient relationship, but also inflicts a considerable psychological and emotional toll on the rejected healthcare worker, contributing to burnout.

This phenomenon also has serious legal, clinical, and ethical implications for patients, healthcare providers, and healthcare institutions. For example, in accordance with EMTALA, hospital emergency departments have an obligation to screen and stabilize any individual with an emergency medical condition who seeks medical treatment. However, informed consent rules and laws against battery grant patients the right to refuse medical care, which includes the right to refuse wanted treatment from an unwanted physician. Healthcare workers, on the other hand, are legally entitled to a workplace free from race- and ethnicity-based discrimination in accordance with Title VII, the employment discrimination provision of the Civil Rights Act; and Section 1981, which guarantees equal rights under law. Medical centers have an obligation to safeguard the employment rights of their workers under these same laws.

Determining how to balance these divergent and seemingly incompatible interests can be difficult, particularly for healthcare institutions. If an institution accommodates a patient’s demand for a doctor of a different race or ethnicity, it may be discriminating against the assigned physician in contravention of employment antidiscrimination laws. However, if it does not accommodate the patient’s demands, it may breach laws against battery by forcing the patient to receive treatment from an unwanted doctor without consent. Yet, if it does not screen and stabilize the patient, it may be liable for violating EMTALA.

Ethical guidelines can suggest ways to deal with these challenging situations. However, any long-term solution must involve healthcare workers acknowledging explicitly that racism and structural inequality have a corrosive effect on health and healthcare. In addition, cultural awareness must be expanded at all levels of practice to allow healthcare providers to interact more effectively with various patient populations. Providers should receive training on how to talk openly, honestly, and productively about race and ethnicity bias; and on how to address discrimination on the part of both patients and physicians. Finally, the profession must commit to increasing diversity. Only 5% of physicians, for example, identify as Black, while nearly 80% of emergency department physician, for example, are White. A multicultural physician workforce that reflects the diversity of the patient population it serves can lead to more positive outcomes, improve patient satisfaction, strengthen cultural awareness, promote sensitivity and tolerance among health professionals, and reduce physician biases.

Current Challenges in Public Health Law: Structural Inequality
An important next step for public health law is to acknowledge and address the ways in which structural inequality creates and perpetuates health disparities. Structural inequality refers to the disadvantage that results from the operation of several interconnected social and economic systems, such as education, employment, credit and financing, housing, policing and incarceration, media, and healthcare, among others. Housing, for example, can contribute to poor health through residential segregation, evictions, and redlining.

Although these social systems can have independent effects, they are also interrelated such that the inequity caused by one system can compound and reinforce the disadvantages caused by others. Consider discriminatory police practices. These practices can lead to incarceration, and the corresponding criminal records can lead to the loss of state and federal rights and benefits (e.g., student loans, nutritional support, housing, right to vote). They can also negatively affect one’s ability to secure a job or credit. This, in turn, can damage one’s chances of obtaining a mortgage or financing for an education, which can lead to unemployment and housing insecurity or homelessness. Each step in this process can have detrimental health consequences. As Osagie Obasogie notes, “major discriminatory events” such as “being unfairly fired, threatened by the police, denied employment, or prevented from moving into a neighborhood” can cause hypertension and other chronic disease risk factors. Importantly, the disadvantage caused by structural inequality can affect not just the individual, but also the entire family unit, and the harm may be felt for generations.

What is particularly notable about structural inequality is that it can manifest in the absence of intentional discrimination. This is because structural inequality often results from prior racially discriminatory laws, policies, and practices. When these discriminatory mechanisms were removed, no reparations were ever made. Consequently, the race-based inequities that the initial mechanisms created have remained; indeed, the inequities have become normalized and naturalized over time. Today, the disadvantage that structural inequality produces is often reinforced and perpetuated through facially neutral laws, policies, or practices that have a disproportionately negative impact upon members of racial minority groups. Thus, despite their discriminatory effects, structural inequities often go unaddressed because they appear to be less a product of past, state-sanctioned discrimination than a consequence of some personal fault on the part of those disadvantaged.

The racially disparate impact of COVID-19 serves as an example. Black and Brown people in the U.S. have become infected with the virus at significantly higher rates than Whites and are more likely to die as a result. Although some commentators initially speculated that this disparity might be related to individuals’ behavioral choices or biological factors, it quickly became clear that the inequity resulted from racism. Longstanding and at one time state-sanctioned discriminatory practices have increased Black people’s exposure and susceptibility to the virus. The U.S. history of underfunding schools in predominantly Black and Brown neighborhoods, for example, along with widespread educational and employment discrimination has led to Black and Brown people being overrepresented in low-wage jobs deemed COVID-19 “essential,” such as food service workers, janitors, warehouse workers, postal workers, home health aides, cashiers, and meatpackers.

The U.S. legacy of redlining and residential discrimination has contributed to Black and Brown people being more likely to live in smaller homes in under-resourced, densely populated areas, which increased their risk of transmitting the virus to their families and others in their communities. They are also overexposed to environmental toxins—which can exacerbate the effects of COVID-19—due to early twentieth-century zoning regulations that explicitly segregated Black populations through mechanisms such as the construction of low-income housing in industrial areas and near environmental hazards. Black and Brown neighborhoods today still disproportionately lack adequate green spaces, as well as nutritious food options, recreational facilities, and healthcare services, including pharmacies able to fill critical prescriptions in a timely manner.

COVID-19 has also ravaged immigration detention centers, which are disproportionately Brown; and has taken a devastating toll on jail and prison populations, which are disproportionately Black. These disastrous effects can be linked respectively to punitive immigration policies aimed at those seeking to cross the U.S. southwestern border, and to the well-documented overcriminalization of Black and Brown people, who are more likely to be arrested and convicted for offenses despite similar rates of crime among racial groups.

The aforementioned conditions that limit opportunity and unfairly disadvantage Black and Brown people can be traced back to racism and the neglect that attends structural inequality. Hence, the practices and processes that are responsible for Black and Brown people’s heightened exposure to the coronavirus and increased risk of dying from COVID-19, although formerly based in explicitly discriminatory practices, are now facially neutral or “color-blind” and thus more difficult to identify and contest.

This chapter opened by highlighting maternal and infant mortality because the health of women and children is often the bellwether of a nation’s overall health and wellbeing. The maternal and infant mortality rate in the U.S. has worsened over the past 25 years and now exceeds that of Mexico, a country with significantly higher levels of poverty. The tragically high incidence of maternal mortality in the U.S. has been driven largely by the disproportionately high mortality rates of infants and mothers of color. Health law can and should serve as a mechanism for addressing this and other race and ethnicity-based health disparities. Just as it worked to dismantle state-sanctioned racial segregation in the provision of health services, health law must endeavor to eliminate structural inequality as well as both implicit and explicit bias in the provision of medical care. These are the driving forces behind the negative health outcomes that cleave along familiar racial and ethnic lines. Indeed, if history is any indicator, then the impact of such efforts would be significant. Studies provide compelling evidence that in the period immediately following the passage of the 1964 Civil Rights Act and the attendant end of Jim Crow segregation, the premature mortality rate for Black people improved. As important as they are, however, such goals will not be easily achieved: racial inequality is so deeply ingrained in U.S. culture and society that to some, any attempt to eliminate the racially discriminatory distribution of socio-economic resources and benefits will itself be seen as racially discriminatory. However, for members of racial and ethnic minority groups in the U.S. today, the necessity of such change is quite literally a matter of life or death.
1Infant Mortality – Maternal and Infant Health, Centers for Disease Control and Prevention (2019), https://www.cdc.gov/reproductivehealth/maternalinfanthealth/infantmortality.htm
2Infant Mortality – Maternal and Infant Health, Centers for Disease Control and Prevention (2019)
3Linda Villarosa, Why America’s Black Mothers and Babies are in a Life-or-Death Crisis, NYTimes (April 11, 2018). See also Racial and Ethnic Disparities Continue in Pregnancy Related Deaths, CDC (2019) (noting that the PRMR for Black women with at least a college degree was 5.2 times that of their White counterparts), https://www.cdc.gov/media/releases/2019/p0905-racial-ethnic-disparities-pregnancy-deaths.html
4See Richard J. David; James W. Collins, Jr., Differing Birth Weight among Infants of U.S.-Born Blacks, African-Born Blacks, and U.S.-Born Whites, N Engl J Med 1997; 337:1209-1214. See also, Theresa Andrasfay & Noreen Goldman, Intergenerational Change in Birthweight Effects of Foreign-born Status and Race/Ethnicity, 31 Epidemiology 649, 652 – 653 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7386866/.
DOI: 10.1056/NEJM199710233371706
5James W. Collins, Jr.; Shou-Yien Wu; Richard J. David, Differing Intergenerational Birth Weights among the Descendants of US-born and Foreign-born Whites and African Americans in Illinois, American Journal of Epidemiology, Volume 155, Issue 3, 1 February 2002, Pages 210–216, https://doi.org/10.1093/aje/155.3.210
7 [cite?]
8NCBI, Communities in Action: Pathways to Health Equity https://www.ncbi.nlm.nih.gov/books/NBK425844/
9Dayna Bowen Matthew, Legal Battles Against Discrimination in Healthcare, in in I. Glenn Cohen, Allison K. Hoffman & William M. Sage, eds., The Oxford Handbook of U.S. Health Law 167 (Oxford University Press, 2015). See also, Natl. Cent. Health Stat. 2016 (“Minority groups continue to live sicker and die younger.”).
10Kimani Paul-Emile, The Regulation of Race in Science, 80 Geo. Wash. L. Rev. 1115, 1131 (2012).
11David S. Jones, MD, PhD, The Persistence of American Indian Health Disparities, 96 Am. J. Pub. Health 2123, 2127 (2006). These diseases reduced some Native American populations by as much as 90%. Id.
12Id. at 2128 (2006).
14Jeneen Interlandi, Why Doesn’t the United States Have Universal Healthcare? The Answer Has Everything to Do with Race,” New York Times (Aug. 14, 2019). [also Jim Downs, Sick from Freedom (2012).]
15Natalia Molina, Borders, Laborers, and Racialized Medicalization, 101 Am. J. Pub. Health 1025 (2011) (citing H.D. King, Frequency of Tuberculosis among Negro Laundresses, 11 Journal of Outdoor Life 275 (1914)).
16[is this a quote?]
17[which piece by her?]
18103 F. 1 (C.C.N.D. Cal. 1900).
19Id. at 7.
20Caitlin Dickerson and Michael D. Shear, Before Covid 19, Trump Aide Sought to Use Disease to Close Borders, NY Times, (May 2, 2020). https://www.nytimes.com/2020/05/03/us/coronavirus-immigration-stephen-miller-public-health.html
22Rosemary Stevens, In Sickness and in Wealth: American Hospitals in the Twentieth Century 50 (1989).
23Barry R. Furrow, et al., Health Law, 384 (2018).
25See W. Michael Byrd & Linda A. Clayton, An American Health Dilemma: Race, Medicine And Health Care In The United States 1900–2000, at 181 (2002).
26Overview of Title VI of the Civil Rights Act of 1964, U.S. DEP’T JUST., https://www.justice.gov/crt/title-vi-civil-rights-act-1964-42-usc-2000d-et-seq
2845 C.F.R 80.3(d)(2).
2942 U.S.C.A. §2000d (2012).
30Joel Teitelbaum, et. al., Medical Care as a Public Accommodation: Moving the Discussion to Race, 29 Am. J.L. & Med. 381, 382 (2003).
31Alexander v. Sandoval, 532 U.S. 275 (2001).
32See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 597 (1983).
33Sara Rosenbaum & Joel Teitelbaum, Civil Rights Enforcement in the Modern Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval, 3 Yale J. Health Pol’y, L. & Ethics 215, 231-232 (2003).
34See, e.g., Equal Access to Health Care: Patient Dumping: Hearings Before the Subcomm. on Human Resources and Intergovernmental Relations of the House Comm. Government Operations, 100th Cong., 1st Sess. 1-2 (1988) (opening statement of Hon. Ted Weiss, chairman of the subcommittee).
35Pub. L. No. 99-272, § 9121, 100 Stat. 82, 164 (codified at 42 U.S.C. § 1395dd (1988 & Supp. III 1991)).
36Social Security Act, § 1867, as amended, 42 U.S.C.A. § 1395dd. See also See Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 272 (6th Cir. 1990) (stating that a “hospital that provides a substandard (by its standards) or nonexistent medical screening for any reason (including, without limitation, race, sex, politics, occupation, education, personal prejudice, drunkenness, spite, etc., may be liable under this section.”).
37See Patient Protection and Affordable Care Act 42 U.S.C. § 18116(a) (2012).
38Affordable Care Act, 42 U.S.C.A. § 300kk (West 2010); Nondiscrimination in Health Programs and Activities, 80 Fed. Reg. 54,172, 54,192–93 (codified at 45 C.F.R. pt. 92).
40OECD Health Statistics 2016, Org. for Econ. Cooperation and Dev., (2016), http://www.oecd.org/els/health-systems/health-data.htm (last accessed Jan. 12, 2017).
41HHS Poverty Guidelines For 2020, Dep’t of Health and Human Servs. Office Of The Assistant Sec’y For Planning And Evaluation (2020), Evaluation (2020), https://aspe.hhs.gov/poverty-guidelines (last accessed Aug. 3, 2020).
42Cohen et. al, Health Insurance Coverage: Early Release of Estimates from the National Health Interview Survey, 2018, National Center for Health Statistics (May 2019), https://www.cdc.gov/nchs/data/nhis/earlyrelease/insur201905.pdf.
43Sidney Watson, Section 1557 of the Affordable Care Act: Civil Rights, Health Reform, Race, and Equity, 55 How. L. J. 855, 857 (2912).
44Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care (Brian D. Smedley, Adrienne Y. Stith & Alan R. Nelson eds., 2002).
45National Health Care Quality and Disparities Reports (2011).
46Khiara M. Bridges, Implicit Bias and Race Discrimination in Health Care, American Bar Association (__).
47Sidney D. Watson, Health Law Symposium: Forward, 48 St. Louis U. L.J. 1, 4-5 (2003).
48Kimani Paul-Emile, Patient Racial Preferences and the Medical Culture of Accommodation, 60 UCLA L. Rev. 462 (2012).
49Kimani Paul-Emile, How Should Organizations Support Trainees in the Face of Patient Bias?, 21 AMA Journal of Ethics 513 (2019).
50Kimani Paul-Emile, Patient Racial Preferences and the Medical Culture of Accommodation, 60 UCLA L. Rev. 462 (2012).
5142 U.S.C. § 1981.
53Kimani Paul-Emile, et al., Dealing with Racist Patients 374 New England Journal of Medicine 708 (2016).
54Association of American Medical Colleges, Diversity in Medicine: Facts and Figures 2019 (2019), https://www.aamc.org/data-reports/workforce/interactive-data/figure-18-percentage-all-active-physicians-race/ethnicity-2018
55Carol Peckham, Medscape Emergency Physician Lifestyle Report 2017: Race and Ethnicity, Bias and Burnout, Medscape (Jan. 11, 2017), https://www.medscape.com/features/slideshow/lifestyle/2017/emergency-medicine#page=6.
56 Osagie K. Obasogie, et. al., Race, Law, and Health Disparities: Toward a Critical Race Intervention, 13 An. Rev. LSS. 313, 321 (2017).
57See Kimani Paul-Emile, Blackness as Disability?, 106 Geo. L.J. 293, 312 (2018).
58Jamila Taylor et al., Eliminating Racial Disparities in Maternal and Infant Mortality, Center for American Progress (May 2, 2019, 5:00 PM), https://www.americanprogress.org/issues/women/reports/2019/05/02/469186/eliminating-racial-disparities-maternal-infant-mortality/
Scholarship of Note
Race and Drug Regulation, in The Handbook on Race, Racism, and the Law, Aziza Ahmed & Guy-Uriel Charles, eds. (Edward Elgar Publishing, forthcoming 2021)

Race and Health Law, in The Oxford Handbook of Race and Law in the United States, Khiara M. Bridges, Devon W. Carbado, Emily M.S. Houh, eds. (Oxford University Press, forthcoming 2020)

Addressing Patient Bias Toward Healthcare Workers: Recommendations for Medical Centers, (coauthored) Annals of Internal Medicine (July 14, 2020)

Physician and Trainee Experiences with Patient Bias, (co-authored) JAMA Internal Medicine, 2019;179(12):1678-1685

Blackness as Disability? 106 GEO. L.J. 293 (2018)

Dealing with Racist Patients, (co-authored) 374 New England Journal of Medicine 708 (2016)