I. DISPARITIES IN BLACK HEALTH
A. The Tragedy of American Health Care In 1999
Congress instructed the Institute of Medicine to prepare a report on racial disparities in health. The study committee performed a literature review of articles in the PUBMED and MEDLINE databases published in peer-reviewed journals from 1992 to 2002. To be selected, the articles must have addressed racial differences in health care while controlling for access and a range of other potential confounding variables. Over 100 studies were selected and summarized in Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare, and a larger group of 600 studies were identified in a companion article covering the last 30 years. Many of these studies have been cited in law review articles concerning racial discrimination in health care, Title VI enforcement, and related topics. *738 The first finding of Unequal Treatment is a wake up call to our color-blind society:
Racial and ethnic disparities in healthcare exist. These disparities are consistent and extensive across a range of medical conditions and healthcare services, are associated with worse health outcomes, and occur independently of insurance status, income, and education, among other factors that influence access to healthcare. These disparities are unacceptable. None of this should be surprising. For as long as records have been kept, studies have reported racial differences in health care access and health status in the United States. In 1985, the Report of the *739 Secretary's Task Force on Black and Minority Health clearly noted the problem twenty years ago:
[C]ontinuing disparity in the burden of death and illness [is] experienced by Blacks and other minority Americans as compared with our nation's population as a whole. That disparity has existed ever since accurate federal record keeping began - more than a generation ago. And although our health charts do itemize steady gains in the health of minority Americans, the stubborn disparity remained - an affront to both our ideals and to the ongoing genius of American medicine. . . [this report] can - it should - mark the beginning of the end of the health disparity that has, for so long, cast a shadow on the otherwise splendid American track record of improving health. The Kerner Commission in 1968, and the United States Commission on Civil Rights in 1963 found racial discrimination and segregation in health care:
[T]he evidence clearly shows that Negroes do not share equally with white citizens in the use of such [health care] facilities. As patients and medical professionals, they are discriminated against in their access to publicly supported health facilities. Commission investigation also shows that the federal government, by statute and administration, *740 supports racial discrimination in the provision of health facilities. The 1948 report to President Truman from the National Health Assembly detailed discriminatory barriers to Black health, as did Gunnar Myrdal's An American Dilemma in 1944. The Assistant Surgeon General in 1915 identified the root causes of racial disparities in mortality as socio-economic and remediable. In 1903, W.E.B. Du Bois wrote The Souls of Black Folk, illustrating the many struggles of life within the Veil of American racism, followed in 1906 by The Health and Physique of the Negro American. In 1869, the Freedmen's Bureau pleaded the great health needs of the newly freed Black population.
Disparities in Black health have been studied to death, while the patients continue to die. Still more studies and reports are in the pipeline. The Tragedy of American health care is that while disparities in Black health are not new, they remain newsworthy, persisting for centuries right up to the present day.
B. Black Health In America
Andrew Hacker and Cheryl Harris suggested that one way to test the persistence and magnitude of racism is to ask white students how much *741 money it would take for them to choose to become Black. I ask a similar question of my students in Health Law. When white students understand the health dimensions of that choice, they generally refuse at any price. Few students will name a price for their untimely death.
Black mortality rates are significantly higher than white rates in seven of the ten leading causes of death, resulting in more than 73,000 excess Black deaths per year. If being Black was a separate cause of death, it would rank sixth in the United States, ahead of diabetes, influenza and pneumonia, Alzheimer's, nephritis, suicide, septicemia, chronic liver disease, homicide, and HIV. Black infant mortality in the United States is more than triple the European rate, and significantly higher than infant mortality in countries like Bulgaria, Costa Rica, Estonia, Greece, South Korea, Lithuania, and Oman, among many others. Black men's life expectancy at birth (LEAB) is currently 5.7 years less than white men's; the female disparity is 4.3 *742 years. If a white male student were to agree to become Black, almost six years of life would be forfeited. Table 1 demonstrates the historical record of this disparity from 1900 to the present:
Table 1. Life Expectancies at Birth
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
Even as general population health improves, most Black health disparities remain, especially for men. While gaps in health care access narrowed in the period 1968- 1978, during the expansion of Medicare *743 and Medicaid, the gaps in life expectancy at birth (LEAB) have not narrowed appreciably over the last century. Table 2 demonstrates that for as long as reliable records have been kept, whites have achieved any given life expectancy approximately one generation before Blacks, a gap which remains relatively unchanged from the 1930s:
Table 2. Black Disparity in Life Expectancy at Birth (LEAB) (Omitted)
*744 For Black men, the disparity in LEAB is even greater. As Table 1 illustrates, much of the gains in Black health have been among women. At current rates of change, these disparities may persist for many generations, even as absolute health improves for most groups.
Nor is the situation likely to improve in the near term. For American children born in 2100, the US Census Bureau projects female LEAB to exceed 91 years for women and 87 years for men. The US Census Bureau blatantly assumes that Black LEAB will improve by 2100, converging almost entirely with white LEAB. This assumption is made without any externally validating data. But even under this wildly optimistic and ahistorical assumption, Black health disparities will outlast every law professor teaching today.
The analysis and conclusions in this first section are relatively uncontroversial, acknowledged by both the Left and the Right. This Article now leaves the safe waters of consensus for controversies over causation, history and remedies. The next section describes the search for a biomedical “cause” of Black disparities in health. The dominant approach is critiqued as etiological reductionism.
