Bad Law Makes Bad Health
Sickness is not just an isolated event, nor an unfortunate brush with nature. It is a form of communication—the language of the organs—through which nature, society, and culture speak simultaneously. The individual body should be seen as the most immediate, the proximate terrain where social truths and social contradictions are played out.
—Nancy Scheper-Hughes and Margaret M. Lock, “The Mindful Body”
The first Justice Harlan cautioned long ago that “it is the duty of all courts of justice to take care, for the general good of the community, that hard cases do not make bad law.” . . . Courts should observe similar caution with regard to easy cases. . . . An easy case is especially likely to make bad law when it is unnecessarily transformed into a hard case.
—Justice John Paul Stevens
A central assertion of this book is that racism—unjust and avoidable discrimination based on race and ethnicity alone—is a fundamental cause of destructive and even deadly health disparities in America.1
The question of whether the law should prohibit racism in health care would seem to present an “easy” case for courts and legislators: Yes! In health care, treating people unfairly based on their race or ethnicity should be illegal. Because physical and mental health are the most basic requirements for any individual to compete fairly for all other resources and benefits of life, the law should unquestionably preclude prejudices from sabotaging an individual’s lifelong endeavors. All Americans deserve an equal opportunity to be healthy without regard to race, color, or ethnicity. Thus, one might expect to find an easy consensus on the importance of legally regulating racial and ethnic discrimination in health care. But
no such consensus exists. In fact, nowhere has the relationship between law and medicine been more fraught with confusion than in the discourse about how to control racism in health care.
Throughout the pages of this book, I will show how the emergence of unconscious rather than overt racism has transformed the easy case for legally prohibiting racial and ethnic discrimination in health care into an unnecessarily difficult case for judges and legislators, as well as for scientists and doctors. Yet I will also show that because the law and health care delivery are inseparably interdependent, a legal approach to racism in health care is essential in order to significantly reduce health disparities. Tragically, the American legal system began during colonial times to sow the seeds of health inequality. The weak legal regime that currently regulates modern health care delivery continues to provide fertile ground for rampant health care discrimination today. Throughout most of our country’s history, the rule of law has been perversely instrumental in enabling the racism—both conscious and unconscious—that has produced, and continues to exacerbate, the unjust distribution of health care, as well as other resources that permit people to live healthy lives, such as property, wealth, income, housing, food, employment, and education. To elucidate this dynamic, I identify four significant chronological periods in American history when law and health intersect.
First, during the colonial period, slave codes and land grants (which extinguished Native American rights) played a vicious role in causing injury to minority health because these laws equated the status of minorities to little more than livestock. Thus, even laws that had nothing directly to do with health or health care efficiently created disparate health outcomes merely by reflecting and reinforcing the hegemony that exposed minorities to inferior living and working conditions—conditions that ravaged their health and the health of their descendants. As America’s economy and society became more complex, the legal constructs required to maintain racial subordination became increasingly explicit and virulent; laws that controlled access to housing, education, and food inequitably distributed these social determinants of health to whites and withheld them from blacks, Asians, Latinos, and Native Americans.
Second, during the first half of the twentieth century, racism in health care became expressly legal. Law that sanctioned appalling prejudices
poured forth from the highest courts and chambers of Congress and from the offices of government in the tiniest American hamlets. Minority health fell victim to an environment of injustice that permeated the nation generally and the delivery of health care specifically. Next, the civil rights era represented a period when the relationship between the law and the state of minority health was positive and symbiotic. Title VI of the Civil Rights Act of 1964 became the weapon of choice in the fight to dismantle segregation in health care. But eventually, seminal civil rights victories gave way to only episodic progress, and then the nation’s distaste for segregation in health care came to an end.
Today, we live in the fourth period, when American antidiscrimination law ironically performs an almost identical function to the role colonial law played in ensuring health disparities. Then, as now, law reflects the prevailing societal attitudes and conduct toward racial discrimination. Little more than legal indifference is needed for courts and legislatures to contribute to the destruction of minority health. Both the overt and explicit racism that harmed minority health during our colonial period and the subtle, implicit biases primarily responsible for producing health disparities today operate effectively to destroy minorities’ health and lives because lawmakers virtually presume the correctness of the prevailing social order and its inequitable outcomes. This chapter traces chronologically the damage to justice, equality, and health that results from an infirm relationship between American law and medicine. The goal is to demonstrate how legal injustice maps onto minority physical and mental health outcomes and thus must be changed.
Because I am a lawyer married to a heart surgeon, I know that the task of finding common ground between doctors and lawyers can be perilous. In my litigation practice, I often encountered doctors who faced medical malpractice lawsuits, partnership battles, or challenges before peer review boards. These were not happy times. As a result, these physicians greatly distrusted the legal system that entangled them, and even distrusted me as one of its representatives. My physician clients often underscored their distrust of the legal system by referencing spectacular injustices they perceived from medical cases reported in the popular press: recovery for burns from hot coffee, a rapist’s charge that a hospital failed to prevent his crime, multimillion dollar verdicts against a doctor for medical tragedies set in motion long before the physician and
patient ever met. Still, the inescapable reality is that law and medicine have been symbiotic actors in creating health disparities since America began, and they remain inextricably linked to any meaningful solution to health inequality.
The Colonial Period: The Hegemonic Role of Law
At the dawn of our nation’s history, neither Europeans nor their American descendants regarded non-whites as fully human. Thus, European law protected the health of minority persons in much the same way the law might control the health of cattle or yard dogs. For example, Thomas R. R. Cobb, a successful Southern lawyer, described English slavery legislation in his defense of slavery titled “An Inquiry of the Law of Negro Slavery.” Cobb reported that an act of British Parliament restricted the number of slaves to be carried on a ship to “five for every three tons, up to 201 tons . . . and by the same act a well–qualified surgeon was required on every vessel” because “disease frequently made sad havoc among the poor creatures.”2
Generally, American law evolved to reflect a similar estimate of the humanity of non-whites. Early American law worked to facilitate the subordination of Native Americans, blacks, and other migrants in the service of the white settlers’ emerging political economy.3
The laws that affected minority health and health care during this period reflected the prevailing, culturally approved views that blacks were no more than “wretched creatures”4
and in Thomas Jefferson’s words, “as incapable as children.”5
Native Americans were deemed “fierce savages”6
and in Andrew Jackson’s words, lacked appreciation for “the causes of their inferiority.”7
The American legal system viewed people of minority descent as subhuman, and thus disregarded their health accordingly.
Early property laws provide an excellent example of the law’s hegemonic role. Although they were aimed at governing land use, English and colonial property laws indirectly but dramatically affected Native Americans’ health by facilitating racial hierarchy and domination by whites to the detriment of minority health and wellbeing. Thus, the legal right to claim land ownership was an early determinant of who might experience inferior or superior health in America. In 1609, King James I of England issued patent letters giving over titles of land he did not own
to European settlers who claimed legal possession of land upon arrival to the world that was “New” to them. Later in 1823, the United States Supreme Court relied upon the “discovery” and forcible “conquest” of these lands to declare that this system of granting land titles from chartered colonies to English settlers had legally established the superior ownership of the white settlers as against the “savage tribes” that preceded them.8
Colonists premised their property titles on claims of racial superiority in order to defeat any right or claim Native Americans might have had to the land they occupied and used before the whites arrived.9
In Johnson and Graham’s Lessee v. William M’Intosh
, Chief Justice John Marshall cited a 1609 patent letter from the King of England to explain the necessity of expelling Indians from the land that had been their home, in order to transfer title to European settlers “by conquest,” saying that
the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible because they were as brave and as high spirited as they were fierce.10
European settlers relied upon this legally sanctioned view to claim land ownership and build their farms, fences, and homes on lands previously settled by Native Americans. In this way, the laws that conferred private property rights to facilitate westward expansion, which history now reveals led to widespread dissemination of European-borne illnesses such as smallpox, measles, influenza, and other communicable diseases, also facilitated the decimation of millions of Native Americans who lacked immunological protection against foreign germs.11
Certainly, the legal charters and land rights cannot be charged with directly causing the ill health and death that Indians suffered when whites began settling under the protection of English and American law. Nevertheless, the protections that the law provided to European settlers conflicted directly with the prior claims that Native Americans who preceded them had to the land, making it possible for colonists to settle among the indigenous people and introduce disease and destruction of entire populations. Some persuasively argue that these colonial plagues continue to manifest in health disparities today.12
Property laws also worked to the detriment of black people’s health during the colonial period. When the European settlers brought African slaves to America, the courts enforced laws that deemed human beings to be mere property and thereby enabled whites to maintain their dominance over, and general cruelty toward, blacks. Judicial decisions such as the infamous Dred Scott13
case provided protection to colonial slave owners, guaranteeing not only their financial ownership rights, but also their right to treat enslaved Africans inhumanely. Often this meant that blacks were deprived of health care and healthy living conditions. A legal regime prevailed that permitted slave owners to provide only the minimal food, shelter, and medical care necessary to protect their financial investment in humans as property and preserve income that flowed from the slaves’ ability to work. Records document black slaves suffering and dying from maladies for which whites commonly received basic medical treatment.14
Slave children playing in filth were regularly susceptible to worms. Adults working and living with little protection against the elements were frequently victims of dysentery, infection, and cold. Historians record slave accounts of their quarters where waste and sewage flowed in drinking water, parasitic worms proliferated, and people without adequate shelter regularly suffered frostbite, infection, and illnesses that could have been easily avoided.15
Dr. Todd Savitt reports that slaveholders took into account the law that identified slaves as chattel to determine the treatment that medical problems received and to justify slaves’ living and working conditions.16
Considered by law as property, ill slaves were often tended to by their owners, receiving medical treatment from a doctor only as a last resort and then in connection with the need to ensure their productive labor. The following letter from a Virginia slave owner, calling for a Fredericksburg physician, is one of many available examples in the historical record.
Doctr James Carmichael or Doctr Edwd H Carmichael
I send my Boy Israel down for youto examine him, I have examined him, and find he has got the Pox
, will you give him what medicine that is necessary and write the directions very plain that it may be understood by any person—as I cannot be at home to attend to him myself . . . and my overseer will have to do it. Please write very particularly, and let
him be cured as soon as possible for he is my best hand to the Plow and I am about to seed Wheat, and am now loosing [sic]by his improvidence
I am Sir Yr Most Obt Sevt
F S Stoel
[unclear] Oct. 3rd 182017
Remarkably, the author of this letter sent “Boy Israel” to a physician for care only after his own efforts failed; he sought the patient’s recovery “as soon as possible” solely because he was needed to return to plowing and seeding. In the end of the letter, the author blamed the slave’s “improvidence” for imposing financial loss on the master. The role of law in early American history functioned to preserve the power and privilege that allowed whites to remain oblivious to the health needs of blacks and Native Americans, except as those health needs impacted white interests.
The Seeds of Segregation: Legalized Racism
During the nineteenth-century industrial revolution, the American legal system operated to restrict minority access to the social determinants of good health. The law was instrumental in inequitably distributing resources such as clean housing, safe employment, and healthy food. As the growing American economy lured more foreign workers to our shores, housing, labor, and immigration laws figured prominently in creating segregated and unsanitary living arrangements. Ghettos densely packed with immigrant workers became vectors for the spread of disease among minority populations. These were made possible by laws such as the municipal ordinances enacted throughout the 1800s that encouraged Chinese laborers to migrate to work on America’s railroads but prohibited them from becoming naturalized citizens.18
As a result, these workers remained unwelcomed outside of their work venues. An 1890 ordinance prohibited Chinese immigrants from living or working anywhere in the city except in prescribed ghettos.19
A court in 1901 spoke disparagingly of the Asian community’s living conditions while imposing a criminal fine for “giving aid to the bringing of aliens to this co...