III. Health Disparities and the Law Prior to 2010

Daryll C. Dykes, Health Injustice and Justice in Health: The Role of Law and Public Policy in Generating, Perpetuating, and Responding to Racial and Ethnic Health Disparities Before and after the Affordable Care Act, 41 William Mitchell Law Review 1129-1285 (2015) (493 Footnotes)

Individual and population health is influenced by strong and incompletely understood relationships between biological, behavioral, socioeconomic, political, social, and environmental factors, collectively referred to as determinants of health. While much of the interest, inquiry, and literature regarding health disparities has focused on factors such as explicit and implicit bias, poverty and inadequate health insurance, and environmental factors such as poor nutrition and smoking, international, federal, state, and local laws, regulations, and judicial decisions also contribute to historic and ongoing health disparities and provide tools for identifying and eliminating disparate health and health care. The following sections provide an overview of the historical legal determinants of health disparities and the legal approaches to eliminating health disparities prior to passage of the Affordable Care Act.

A. Federal Law

1. The Constitution

a. Constitutional Contributions to Health Disparities and the “Right” to Health Care

The U.S. Constitution contains no provisions that expressly create health inequities. However, during the seventy-seven years between its ratification in 1788 and passage of the Thirteenth Amendment in 1865, the Constitution protected slavery and *1148 legalized the racial subordination of blacks. Since slaves suffered poor health and received inferior health care compared to whites during this time, arguably the Constitution implicitly contributed to past and present race-based health disparities.

Similarly, the Constitution contains no provisions that expressly guarantee health or protect against health inequities. Although legal scholars have debated the distinctions between negative and positive rights, it is generally held that the U.S. Constitution almost exclusively grants negative rights (i.e., “protections against government invasion of [one's] rights”), as opposed to positive rights (i.e., “require[ments] that the government provide [[individuals] with any specific benefits or protections”). Specifically, with the exception of the constitutional right to health care afforded to prisoners, the *1149 Constitution does not require federal, state or local governments to protect or provide for the health of citizens, either collectively or individually. This is in contrast to the constitutions of other nations, which provide explicit positive and negative rights. For example, the 1996 post-Apartheid South African Constitution championed by President Nelson Mandela recognizes both a negative obligation to be free from government interference with socio-economic rights and an affirmative obligation that the government develop reasonable policies to meet individuals' socio-economic needs, including access to health care services. South African law specifically recognizes that “[f]or access to be effective, it must be culturally appropriate and timely.” However, according to the South African Constitutional Court, this is a progressive right that recognizes the imbalance between significant demands and limited resources, and imposes an obligation on the government to “ensure that correct, coherent and coordinated programs are implemented and maintained to ensure that a right is realised over time for all of the citizens of the Republic.”

While the progressive ideals of the South African Constitution may provide a valuable framework for addressing health disparities in the United States, remaining social, political, and economic challenges have, according to one author, relegated South Africa's health care provision to “an aspiration that may only find its *1150 meaning in science fiction as opposed to jurisprudence and practical implementation of healthcare delivery and services.” Unfortunately, almost two decades after the country's rebirth and reformation, access to physical and mental health care remains vastly unequal between blacks and whites. Similarly, although an amendment to the U.S. Constitution providing Americans a positive right to equitable health and health care seems unlikely in the near future, it is doubtful that such a provision would alone eliminate health disparities in light of the remaining social, political and economic hurdles.

b. The Equal Protection Clause

Despite the fact that the U.S. Constitution does not provide a positive right to health or health care--let alone equitable health care--constitutional claims to health theoretically still could be brought under the Equal Protection Clause of the Fourteenth Amendment. Services provided voluntarily by the government should be provided without discrimination, but courts will evaluate Equal Protection discrimination claims with varying degrees of scrutiny. Where government actions target populations on the basis of a “suspect classification” such as race, national origin, alienage, or other “obvious, immutable, or distinguishing characteristics,” U.S. courts will apply a strict scrutiny standard *1151 of review to insure that the government action is: (1) justified by a compelling governmental interest, (2) narrowly tailored to achieve the government's interest, and (3) the least restrictive means of achieving that interest. Although the strict scrutiny standard is not insurmountable, the heavy burden the government faces in justifying its actions under this type of judicial review led Gerald Gunther to famously characterize this standard as “strict in theory, but fatal in fact.” For example, federal courts have applied strict scrutiny to strike down state decisions cutting medical benefit programs to aliens. Similarly, in Memorial Hospital v. Maricopa County, the Supreme Court struck down an Arizona statute requiring an indigent person to have been a resident of his or her county for the preceding 12 months in order to be eligible for free nonemergency medical care. Although the subjects of the litigation were three undocumented Mexican nationals, the case did not turn on race or national origin. The Court also stopped short of declaring health care a fundamental right. Alternatively, the durational residence statute, according to the Court, created “an ‘invidious classification’ that impinges on the [fundamental] *1152 right of interstate travel by denying newcomers ‘basic necessities of life.”’

By definition, racial and ethnic health disparities impact “discrete and insular minorities” for whom the Constitution provides well-established protections, and to which strict scrutiny would apply in any claim brought under the Equal Protection Clause. However, two significant factors present nearly insurmountable obstacles to any potential court intervention in the case of health disparities. The first obstacle is the “state action” doctrine. The Equal Protection Clause of the Fourteenth Amendment protects individuals' Constitutional rights from government conduct, not the conduct of private actors. Generally, “[t]herefore, courts are powerless to halt private infringements of even the most basic constitutional values,” and offer “no shield against private conduct, however discriminatory or wrongful.” Notably, for example, while the Americans with Disabilities Act (ADA) classifies private health care establishments as “places of public accommodation irrespective of whether the provider or entity receives federal funding,” the same protections against racial segregation and exclusion are not extended to the private health care sector. Accordingly, potential claims seeking remedies for health disparities under the Equal Protection Clause are likely limited to those against government health care entities *1153 or to private actors where “the nexus to the state is so great . . . that the state can be held responsible for the activity.”

Second, and perhaps more importantly, constitutional challenges to health disparities are limited by the doctrine of “discriminatory purpose.” In his classic work entitled The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, Professor Charles Lawrence critically examined the doctrine of “discriminatory purpose” that was established by the 1976 Supreme Court decision in Washington v. Davis. The discriminatory purpose doctrine “requires plaintiffs challenging the constitutionality of a facially neutral law to prove a racially discriminatory purpose on the part of those responsible for the law's enactment or administration.”

As the doctrine of discriminatory purpose applies to health disparities, Professor Barbara Noah concluded:

No matter how compelling the evidence of racial inequities in the health care context, nothing convincingly suggests a pattern of widespread intentional discrimination. Clearly, discrimination can exist without proof of invidious intent, but not all documented inequities across racial lines constitute discrimination. “Intent” in the equal protection context embodies ideas of willfulness and morally reprehensible motivation. Even so, disparate health treatment decisions that do not result from poor preventive care, or from a patient's presenting with a more acute condition, may well arise from unconsciously biased decisions on the part of health care professionals. Given these complexities, it seems appropriate to reconsider the current equal protection analysis requirement that plaintiffs prove intentional discrimination.

*1154 In the Supreme Court case of Ricci v. DeStefano, Justice Antonin Scalia admonished that “the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them.” However, three decades after Professor Lawrence challenged the Court to ask whether there was constitutional injury in the cultural meaning of racially discriminatory impact, despite the more recent pleas of legal scholars like Professor Noah, and in the face of considerable psychological and social science evidence of the role of the unconscious in discrimination, the courts still refuse to consider evidence of disparate impact in Equal Protection challenges to government actions and policies. To the contrary, in a follow-up to his earlier treatise, Professor Lawrence laments the Supreme Court decision in Parents Involved in Community Schools v. Seattle School District that “turned Brown v. Board of Education on its head, declaring it unconstitutional for us to see our racism, to speak of it out loud, to make it visible so that we can fight it together.” In Parents, the Court ruled that Seattle's compelling interest of diversity could not justify the school district's use of racial classification in student assignment plans. In delivering the five-to-four majority opinion overturning the Seattle policy, Chief Justice John Roberts concluded:

Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again--even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve *1155 a system of determining admission to the public schools on a nonracial basis,” is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

To compound the challenges to the strict scrutiny standard of review, more commonly courts will apply the “rational basis” standard of review to claims brought under the Equal Protection Clause. Under rational basis review, courts are highly deferential to the government, and the burden is upon the plaintiff to negate any reasonably conceivable basis that might support the government's action or policy, whether or not the conceived basis actually motivated the government. As summarized by the Sixth Circuit Court of Appeals:

Under rational basis review, the governmental policy at issue “will be afforded a strong presumption of validity and must be upheld as long as there is a rational relationship between the disparity of treatment and some legitimate government purpose.” Under rational basis review, a plaintiff faces a severe burden and must “negate all possible rational justifications for the distinction.”

Most notably, social and economic classifications typically are subject to rational basis review. In Dandridge v. Williams, the Supreme Court considered a Maryland Department of Public Welfare regulation placing an absolute limit of $250 per month on grants of Aid to Families with Dependent Children (AFDC), regardless of the size of the family or the family's actual need. Citing its legitimate state interests “in encouraging gainful *1156 employment, in maintaining an equitable balance in economic status as between welfare families and those supported by a wage-earner,” as well as “providing incentives for family planning, and in allocating available public funds in such a way as fully to meet the needs of the largest possible number of families,” Maryland argued that its maximum grant regulation was “wholly free of any invidious discriminatory purpose or effect.” The Supreme Court upheld Maryland's regulation, concluding that “‘[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”’ “[W]ith ominous portent for poor people,” as described by Professor Julie Nice, “Dandridge sweepingly suggested that challenges to socioeconomic regulation might not even be justiciable by announcing: ‘the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court.”’ Three years later, in San Antonio Independent School District v. Rodriguez, the Supreme Court reiterated its rejection of wealth-based suspect classification where schools received higher funding in high tax districts and lower funding in lower tax districts. The Court concluded that poor families challenging the school financing scheme had “none of the traditional indicia of suspectness: the class is not saddled with such disabilities, . . . or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Like those who suffer race-based health disparities, under this line of reasoning, those who suffer poverty-related health disparities are likely to have little to no recourse under the Equal Protection Clause.

*1157 Finally, analysis of any potential constitutional claim regarding health disparities is complicated by courts' use of a third “zone” of judicial review that lies somewhere between the exacting strict scrutiny standard and the rational basis standard, where all but the most egregious government actions are allowed. Variably referred to by terms such as “intermediate scrutiny,” “heightened scrutiny,” and “rational basis ‘with teeth’,” this standard of judicial review was first articulated in the 1970s as a means to assess sex-based Equal Protection claims. The Supreme Court determined that certain classifications must “serve important governmental objectives,” and must be “substantially related to achievement of those objectives.” These requirements--which are less rigorous than the “compelling governmental interest” and “narrowly tailored, least restrictive means” requirements, yet more restrictive than the “any reasonably conceivable basis” and “any reasonable means” requirements--are intermediate between those of strict scrutiny review and rational basis review, respectively. In addition to sex-based classifications, intermediate scrutiny review has most commonly been applied to restrictions based on illegitimacy, regulations affecting content-neutral speech, and, most recently, sexual orientation. To date, no cases directly claiming disparate health treatment on the basis of gender or sexual orientation have been decided by federal courts.

*1158c. Substantive Due Process

The Fifth and Fourteenth Amendments of the Constitution provide that the government shall not deprive persons of “life, liberty, or property without due process of law.” In his opinion for the Court in Washington v. Glucksberg, Chief Justice Rehnquist asserted:

The Due Process Clause guarantees more than fair process, and the “liberty” it protects includes more than the absence of physical restraint. The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment.

Although the term “fundamental right” has myriad “inherently problematic, open-ended, and insufficient” definitions, the Constitution does not, by virtually any definition, provide a fundamental right to health or to receive health care, let alone equitable health care. The Supreme Court has found implicit fundamental rights within certain penumbras--or surrounding *1159 areas--of explicit constitutional rights. For example, reasoning that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance,” the Supreme Court in Griswold v. Connecticut concluded that a Connecticut law forbidding the use of contraceptives by married couples was an unconstitutional invasion of the fundamental “notions of privacy surrounding the marriage relationship,” although the term “privacy” is not expressly mentioned in the Constitution. Likewise, although “travel” is not found in the text of the Constitution, the “‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence,” as a right “so important that it is ‘assertable against private interference as well as governmental action . . . a virtually unconditional personal right, guaranteed by the Constitution to us all.”’

Generally, however, courts have been reluctant to recognize new fundamental constitutional rights. For example, despite their individual and societal significance, the Court has declined to recognize a fundamental right to public welfare assistance programs or housing. Most notably, despite its conclusion that “the grave significance of education both to the individual and to our society cannot be doubted,” the Supreme Court in San Antonio Independent School District v. Rodriguez said the Constitution does not provide a fundamental right to education. Holding that “[i]t is not the province of the Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws,” the Court concluded,

*1160 [T]he key to discovering whether education is ‘fundamental’ is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution.

Following Rodriguez, the Supreme Court seems to have “shut the door on the recognition of additional rights” and has expressly declined to recognize a broad spectrum of asserted fundamental rights. In keeping with this trend, no court has been willing to interpret the Constitution broadly enough to imply a fundamental right to health within the penumbra of the right to life. Professor Elizabeth Weeks Leonard has noted:

Accepting that health is not a constitutionally protected right, any Due Process claim, like any Equal Protection claim, would be viable only if the government voluntarily undertakes to provide health care. Even then, the statute or regulation establishing the government service would have to create a legitimate claim of entitlement. Furthermore, the government would be liable under Due Process only if it unjustly deprived individuals of the health care service or benefit.

2. The Hospital Survey and Construction Act (The Hill-Burton Act)

During the period of 1929 to 1945, the Great Depression and World War II resulted in diminished capital investments in hospitals and other health care facilities. Despite the failure of his larger plan to reform health care, including a national health *1161 insurance plan, President Harry S. Truman signed into law the Hospital Survey and Construction Act of 1946, commonly known as the Hill-Burton Act. Considered by some as “the last and perhaps the most progressive expression of redistributive New Deal liberalism,” the Act provided grants and loans to hospitals to grow and modernize, particularly in underserved areas across the rural South. In return, funded facilities agreed to provide a “reasonable volume” of free or reduced-fee care for a period of twenty years after receiving funding, to all people living in the area “without discrimination on account of race, creed or color,” and to those with an inability to pay. However, just prior to passage, Senator J. Lister Hill (D-Ala.), who co-sponsored the bill with Senator Harold Burton (R-Ohio), was able to add the wording: “But an exception shall be made in cases where separate hospital facilities are provided for separate population groups, if the plan makes equitable provisions on the basis of need for facilities and services of like quality for each such group.” While this Jim Crow provision of the Hill-Burton Act made facilities separate, it did not make them equal. The Hill-Burton Act provided construction grants to ninety hospitals that refused to accept black patients or subjected black patients to inferior and unhealthy accommodations. In addition to “separate-but-equal” hospitals, significant federal funds went to hospitals that segregated patients on the basis of race. From its inception in 1946 until December 31, 1962, the Hill-Burton program provided $36,775,994 in federal grants to aid in the construction or remodeling of eighty-nine medical facilities intended for the exclusive use of either white or *1162 black persons. Despite the significantly greater shortage of beds available for blacks, only $4,080,308 of such grants went to thirteen projects intended for the use of blacks.

In 1954, at the time of the Brown v. Board of Education decision to desegregate schools, many saw little promise for racial integration in hospitals and health care. However, the decision in the 1963 case of Simkins v. Moses H. Cone Memorial Hospital prompted Department of Health and Human Services Secretary Anthony Celebrezze to implement a permanent ban on separate-but-equal facilities in all pending and future applications to the Hill-Burton program. In Simkins, a group of Greensboro, North Carolina black physicians, dentists, and patients brought discrimination suits against one Hill-Burton separate-but-equal hospital that excluded black physicians and patients altogether, and a second that admitted some black patients, but imposed restrictions on black patients that did not apply to white patients. Following the district court's decision in favor of the defendant hospitals, the plaintiffs appealed to the Fourth Circuit Court of Appeals. In a November 1, 1963 decision, the circuit court reversed the decision of the district court, ordering the hospitals to cease their discriminatory practices and declaring the separate-but-equal provisions of the Hill-Burton Act unconstitutional under the Fifth and Fourteenth Amendments. The United States Supreme Court declined to review the case, leaving the circuit court's decision standing in favor of the plaintiffs.

Moreover, with the passage of Title VI of the Civil Rights Act of 1964, the federal government “prohibited the provision of federal *1163 funds to organizations . . . that engaged in racial . . . or other forms of discrimination.” Given their heavy reliance on federal funds from the Medicare and Medicaid program enacted one year later, hospitals were suddenly faced with choosing “between affluence through compliance or bankruptcy.” While the visible remnants of Jim Crow policies were quickly removed from many institutions, significant segregation of health services continued.

By 1971, as the Hill-Burton program approached its scheduled expiration in 1973, the program had provided $3.7 billion in federal funding and $9.1 billion in matches from state and local governments to create nearly a half million beds in 10,748 projects, including nursing homes, mental-health facilities, public-health centers and hospitals. Although for the first twenty years of the act's existence, most Hill-Burton funded southern facilities remained closed to black physicians and there were no compliance mechanisms to ensure that facilities were providing non-discriminatory care, historian Edward H. Beardsley provides the view that, with the help of Hill-Burton projects, “Southerners of both races, but blacks particularly, began to enjoy an access to modern hospital care that they had never known before.”

In 1975, the Hill-Burton Act was amended as Title XVI of the Public Health Service Act. Under the Title XVI Hill-Burton regulations, facilities assisted by the program are “required to provide uncompensated services in perpetuity.” The Title XVI amendments also transferred the program's “enforcement responsibilities from States to the Federal government” and refined compliance standards. Program modifications in 1979 further refined “compliance levels, eligibility [criteria], record maintenance, and reporting requirements.” By the time the program ceased funding in 1997, $4.6 billion in federal grants and *1164 $1.5 billion federal loans had been distributed to 6800 health care facilities in more than 4000 U.S. communities.

Hill-Burton health care facilities have provided “more than $6 billion in uncompensated services . . . to eligible patients” since 1980, with approximately “170 facilities . . . still obligated to provide free or reduced-cost care” under the program. Currently, patients may qualify “for Hill-Burton free care if [their] income is at or below the current HHS Poverty Guidelines,” or reduced care if their income is less than or equal to two times the HHS Poverty Guidelines, or three times the HHS Poverty Guidelines for nursing home care.

In addition to the uncompensated care requirements, the Hill-Burton program under the amended Title XVI provisions has community service requirements. These rules require recipient facilities to make services provided by the facility available to persons residing or employed “in the facility's service area without discrimination on the basis of race, color, national origin, creed, or any other ground unrelated to the individual's need for the service or the availability of the needed service in the facility,” and may not adopt policies that have the effect of excluding patients on these discriminatory grounds. Additionally, under Title XVI, Hill-Burton program facilities must participate in the Medicare and Medicaid programs unless they are ineligible to participate, and must post notices informing the public of its community service obligations in English and Spanish. Facilities also must translate such notices into any language spoken by ten percent or more of the households in its service area and must “make reasonable efforts to communicate the contents of the posted notice to persons who it has reason to believe cannot read the notice.”

*1165 Despite its strong and clear anti-discrimination stance, the Hill-Burton Act provides limited means of redress for patients against hospitals that implement discriminatory admissions practices or policies. Under 42 C.F.R. § 124.606, an aggrieved party may file a complaint against a facility with the Secretary of HHS. HHS will, “based on priorities for the disposition of complaints that are established to promote the most effective use of enforcement resources,” either investigate or dismiss the complaint. If HHS determines that a facility has violated the Act, it may require the facility “to establish an effective affirmative action plan . . . designed to insure” compliance with the Act, or may “take any action authorized by law to secure compliance, including but not limited to voluntary agreement or a request to the Attorney General to bring an action against the facility for specific performance.” If the secretary dismisses a complaint or the attorney general has not brought an action for compliance within six months from the date on which the complaint is filed, the aggrieved party may bring a private action to effectuate compliance with the Act. Notably, “the Act does not grant individual patients a private right of action to demand medical treatment.” Moreover, “individual suits to compel enforcement of the Act's uncompensated care and community service provisions . . . are limited to this enforcement role only.” Several cases interpreting the Act and its implementing regulations have concluded that suits for personal relief are not supported by the Act, leading one author to conclude that “although an individual who is subjected to discriminatory admissions policies at a Hill-Burton hospital can file a private action to compel the hospital's compliance with statutory obligations, such a right of action appears more of a symbolic victory than a practical means of remedying the wrong.”

*11663. Civil Rights Law-- Title VI of the Civil Rights Act

Although the 1963 decision in Simkins v. Moses H. Cone Memorial Hospital marked a significant milestone in the journey toward elimination of disparities in health care, its impact was limited because the ruling applied only to Hill-Burton facilities. However, in 1964, the Fourth Circuit Court of Appeals followed its Simkins decision with a ruling that extended the prohibition against racial discrimination to a hospital that had not received Hill-Burton funds. In Eaton v. Grubbs, black physicians and two of their patients brought a claim to enjoin a Wilmington, North Carolina, hospital from denying their “admission to staff membership and treatment facilities on racially discriminatory and segregated basis.” The circuit court had previously affirmed a 1958 district court's dismissal of an action by the same plaintiffs on the grounds that the “act of discrimination in denying [black] physicians courtesy staff privileges at hospital did not constitute state action which the federal court had power to interdict.” Relying in large part on the recent United States Supreme Court decision in Burton v. Wilmington Parking Authority that a private business can operate in such close relationship to a government that it becomes a state actor, here the court held,

[T]he record in its entirety leads to the conclusion that the hospital is performing the state's function and is the chosen instrument of the state. Under our constitutional commitment the James Walker Hospital is therefore bound by the provisions of the Fourteenth Amendment to refrain from the discrimination alleged in the complaint.

With the decisions in Simkins and Eaton, the prohibition against discrimination and segregation in health care applied to Hill-Burton and state-affiliated facilities under the jurisdiction of the Fourth Circuit, which are those in North Carolina, South Carolina, Virginia, and West Virginia. The rulings did not, however, *1167 apply to other private facilities or facilities outside the court's jurisdiction.

Eight months after the Simkins decision, and three months after the Eaton decision , President Lyndon B. Johnson signed the Civil Rights Act into law on July 2, 1964. This landmark legislation outlawed discrimination in voter registration requirements and racial segregation in schools, the workplace, and in public accommodations. Championed by President John F. Kennedy, H.R. 7152 was introduced by Representative Emanuel Celler (D-NY) on June 20, 1963. The bill made a contentious way through Congress until President Kennedy's assassination on November 22, 1963. In succeeding Kennedy, President Johnson led the charge for passage of the legislation and, with strong support from Majority Whip Hubert H. Humphrey, Jr. (D-MN), a Senate compromise version of the bill passed in the House on July 2, 1964.

Title VI of the Civil Rights Act of 1964, codified as 42 U.S.C§ 2000d, states, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

The regulations promulgated under Title VI impose significant requirements upon federally funded programs, including the mandate that programs provide contractually binding assurances that they will adhere to Title VI regulations. Federally funded programs also must file compliance reports with the Office of Civil Rights (OCR) at HHS documenting the quantity and type of services the program provides to minorities. Shortly following its enactment, the Federal Department of Health, Education, and Welfare (DEHW) limited the role of the Civil Rights Act with respect to physicians. It did so through its *1168 interpretation of the language in Title VI excluding any “‘contract of insurance or guaranty.”’ Considering Medicare Part B typical indemnity insurance for patients' losses, the payment of insurance proceeds received from Medicare Part B to a treating physician does not, according to the DEHW, constitute federal financial assistance to the physician for the purposes of the Civil Rights Act. Accordingly, individual physicians were considered a “program or activity receiving Federal financial assistance” only when providing services under Medicaid, the State Children's Health Insurance Program (SCHIP)--another federally funded program--or when contractually linked to a managed care plan that provides services for Medicare or Medicaid enrollees.

Furthermore, in Alexander v. Choate, the Supreme Court concluded that despite widely varying interpretations of Title VI, the Act itself prohibits only intentional discrimination, but the implementing regulations specifically prohibit facially neutral activities that impair the agency's objectives “and those that result in a disproportionate impact on a group.” The Choate decision was based largely on the Court's analysis of Guardians Association v. Civil Service Commission of New York. In Guardians, although the Court held that “Title VI does not explicitly allow for any form of a private right of action[,]” three of the five Justices who also voted to uphold disparate-impact regulations “expressly reserved the question of a direct private right of action to enforce them.” Thus, according to the Court, a private plaintiff may secure equitable relief if he is able to prove intentional discrimination, but the Court did not “clearly answer the question of whether similar relief might be available where the plaintiff can only prove the disparate impact of a facially neutral policy.”

*1169 While some scholars aptly chronicle both congressional intent and judicial precedent authorizing the private right to bring suit for enforcement of Title VI's prohibition of disparate impact discrimination, any remaining question as to the Supreme Court's position regarding such a right was resolved in Alexander v. Sandoval. Martha Sandoval, a Mexican immigrant, was not sufficiently fluent in English to pass the written portion of Alabama's driver's license exam. Claiming that Alabama's English-only driver's license test policy had an unjustified discriminatory effect on the basis of national origin in violation of Title VI and its implementing regulations, Sandoval initiated suit to challenge the policy. The Court of Appeals for the Eleventh Circuit affirmed the district court's judgment in favor of Sandoval, enjoining Alabama's continued use of the English-only test. The Supreme Court granted review of the decision on the question of whether private individuals may sue to enforce disparate impact regulations promulgated under Title VI. In a five-to-four decision, authored by Justice Antonin Scalia, the Court held that an individual plaintiff may challenge the policy of a federally funded program only if he or she can show intentional discrimination. As summarized by the Department of Justice, “only the funding agency issuing the disparate impact regulation has the authority to *1170 challenge a recipient's actions under this theory of discrimination.”

The Court's decision in Sandoval certainly creates barriers to challenging policies that have disproportionate impact on the health and health care of minorities. First, few federally funded private health care institutions or programs are overtly discriminatory, and where discrimination on the basis of race, color, or national origin does exist, it is likely difficult to prove. Second, OCR has announced few noteworthy Title VI actions related to race-based disparate impact. According to OCR, “[m]ost OCR resolution agreements address the need to improve access for persons with disabilities and for people with limited English proficiency.” In fact, in a list of forty recent health-related civil rights resolution agreements and compliance reviews on the OCR website, twenty-seven involve allegations of disparate impact discrimination toward persons with disabilities, eight involve limited English proficiency, and only five involves race-based disparate impact. In an enforcement action against University of Pittsburgh Medical Center (UPMC), OCR announced:

OCR Region III reached a voluntary resolution agreement with UPMC, prior to conducting a full-scale investigation. The complaint alleged that UPMC violated Title VI of the Civil Rights Act of 1964, when it closed one of its affiliated hospitals located in a small, predominately black community near Pittsburgh, Pennsylvania. UPMC *1171 maintains that it closed the facility due to millions of dollars in financial losses as well as underutilization by the community. In order to ensure that the hospital's closure does not have a disparate impact on the predominantly minority community, UPMC agreed to subsidize expanded hours and services at a federally qualified health center; provide door to door transportation for residents to three outpatient facilities in a neighboring community; and provide door to door service to another UPMC affiliated hospital. UPMC also agreed to conduct six health-screening programs throughout the year as well as a diabetes-screening program twice a year; designate an ombudsperson to help individuals navigate the UPMC health care system; and provide outreach to faith-based health ministries in the community.

As summarized by Professor Dana Matthew,

Now that Alexander v. Sandoval has eliminated the private avenues for enforcement of Title VI disparate impact claims, only two alternatives remain. A private plaintiff may still obtain injunctive and declaratory relief under Title VI for intentional discriminatory treatment, or vigilant and committed administrative agencies can enforce the disparate impact regulations promulgated under Title VI. Unfortunately, there is no evidence of any such commitment in the current administration. In fact, much has been written to confirm that where healthcare is concerned, Title VI enforcement to eliminate racial disparity and injustice is no longer a priority. One commentator has opined that the “timid and ineffectual enforcement efforts of the government through . . .OCR . . . have fostered, rather than combated, the discrimination that continues to infect the nation's health care system.”

*11724. Indian Health Care

As part of the federal government's efforts since the nineteenth century to assimilate Native American health care into the mainstream American process, the Bureau of Indian Affairs at the Department of the Interior originally oversaw congressional appropriations used for health care programs offered to American Indians. The Snyder Act of 1921, which is the first acknowledgement by the federal government of the need to provide for the health care needs of Native Americans, provided for appropriations as needed to the Bureau of Indian Affairs to assist Native Americans in many respects, including “relief of distress and conservation of health.” Following several organizational transfers, the responsibility for Indian health care oversight ultimately came to lie with the Indian Health Service (IHS), a division of the U.S. Department of Health and Human Services.

The Indian Health Care Improvement Act (IHCIA) was enacted by the 94th Congress and signed into law by President Gerald Ford on October 1, 1976. Congress found that many IHS facilities were “inadequate, outdated, inefficient and undermanned,” and while recognizing that spending for IHS had grown from $128 million in fiscal year 1970 to $425 million in fiscal year 1977, President Ford acknowledged that “Indian people still lag behind the American people as a whole in achieving and maintaining good health.” The law was intended to provide for improvements in Indian health manpower, services, and facilities; *1173 and, through a series of amendments since its passage, it has been the cornerstone legal authority for the provision of health care to American Indians and Alaska Natives.

Today, IHS utilizes direct, tribal, and contracted service providers to deliver health care to 2.2 million of the estimated 3.4 million nationwide American Indians and Alaska Natives belonging to 566 federally recognized tribes. Federal IHS resources consist of 28 hospitals, 61 health centers, 34 health stations, a clinical workforce of approximately 2590 nurses, 790 physicians, 660 pharmacists, 670 engineers/sanitarians, 330 physician assistants/nurse practitioners, 290 dentists, and various allied health professionals (such as nutritionists, health administrators, and medical records administrators). Together with American Indian tribes and Alaska Native corporations (which administer 17 hospitals, 249 health centers, 70 health stations, and 164 Alaska village clinics), IHS delivers preventive and therapeutic measures in a national system. Although most IHS funds are appropriated for American Indians and Alaska Natives who live on or near reservations or Alaska villages, Congress also has authorized funding to support programs that provide some access to care for American Indians and Alaska Natives who live in urban areas.

Despite significant improvements provided by the Indian health model and the participation of Indian people in decisions affecting their health, American Indians continue to experience large disparities in life expectancy and death due to chronic liver disease and cirrhosis, diabetes mellitus, unintentional injuries, assault/homicide, intentional self-harm/suicide, and chronic lower respiratory disease compared to the U.S. general population. Moreover, the authorization of appropriations for the IHCIA expired in 2000, and while Congress considered various efforts to reauthorize it since then, the IHCIA's future was uncertain until it *1174 was amended and permanently reauthorized in 2010 under the Patient Protection and Affordable Care Act.

5. The Emergency Medical Treatment and Labor Act (EMTALA)

The Emergency Medical Treatment and Labor Act (EMTALA) applies to all hospitals that receive federal Medicare funds and that have emergency departments or provide emergency medical care. In 1986, there was a growing crisis of hospital “patient dumping”--a practice whereby uninsured, minority, or other “undesirable” patients were transferred to other hospitals to receive inferior care, or no care at all. To ensure that hospitals would provide equal treatment regardless of citizenship, race, ethnicity, or ability to pay, Congress passed EMTALA in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA). EMTALA imposes affirmative duties on hospitals to screen and, if necessary, treat and stabilize every individual who comes to the emergency department. Specifically, hospitals must: (1) provide “an appropriate medical screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition . . . exists”; (2) provide treatment to stabilize the medical condition or appropriately transfer the individual to another hospital if an emergency medical condition exists; and (3) abide by restrictions on transferring unstable individuals and transfer stable individuals only in cases of medical necessity. The Act does not, however, provide for reimbursement for hospital services rendered under the mandate.

*1175 Physicians, including on-call physicians, who violate EMTALA may be subject to a civil penalty of up to $50,000; and, if the violation is gross and flagrant or is repeated, to exclusion from participation in federal and state health care programs. A participating hospital that negligently violates a requirement of EMTALA is subject to a civil money penalty of not more than $50,000 (or not more than $25,000 in the case of a hospital with less than 100 beds) for each such violation. Additionally, EMTALA provides a civil cause of action for damages and/or equitable relief to “[a]ny individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement” of the Act, according to the laws of the state in which the hospital is located.

The private right of action created by EMTALA does not require that a patient specifically allege discrimination on the basis of race or ethnicity. In Cleland v. Bronson Health Care Group, Inc., the Sixth Circuit Court of Appeals explained that a hospital violates the Act when it fails to provide a medical screening or stabilization due to an “improper motive,” such as indigence or “prejudice against the race, sex, or ethnic group of the patient; distaste for the patient's condition (e.g., AIDS patients); personal dislike or antagonism between the medical personnel and the patient; disapproval of the patient's occupation; or political or cultural opposition.” Although the Supreme Court subsequently overruled the requirement to show an improper motive in a “failure to stabilize” claim under § 1395dd(b), it declined to address the Sixth Circuit's interpretation of EMTALA's “appropriate medical screening” language, leaving the improper motive requirement intact under § 1395dd(a). Assuming, however, that a plaintiff can demonstrate that a hospital violated the screening and/or stabilization requirements of EMTALA, he or she cannot prevail in an action against the hospital where there is *1176 no compensable injury, or where there is no causal link or nexus between the violation and the compensable injury.

Ultimately, however, remedies available under EMTALA are of limited impact to overall reduction of disparities in health and health care, since the Act applies only to emergency medical care. Moreover, as articulated by one legal scholar:

The frequent inability of plaintiffs suing under EMTALA to survive summary judgment has substantially curtailed the Act's capacity to remedy and deter disparities in emergency-department screenings. At summary judgment, many federal courts, often without a detailed explanation of what constituted the hospital's uniform practice, are highly deferential to the assertions, judgments, and perceptions of treating physicians. To the extent that this practice constitutes a “weighing of the evidence,” it amounts to an aggressive, if not improper, use of summary judgment. And it puts a tremendous evidentiary burden on EMTALA plaintiffs that precludes meaningful private enforcement of the Act.

6. Federal and State Law Regarding the Collection and Use of Race, Ethnicity, and Preferred Language Data

Although it is generally agreed that improvements in health care quality can result from the collection and use of race, ethnicity, and preferred language data, or REL data, to identify disparities and target specific interventions to reduce gaps in care and outcomes, legal concerns historically led few health plans to *1177 collect such data. However, as concerns regarding the legal implications have subsided, hospitals, physician groups, and health plans have significantly increased their collection of REL data from patients or members as a way to identify disparities in health or health care, implement effective quality improvement, and provide support for culturally appropriate communications to patients or plan members.

No federal law prohibits health care providers or health insurance plans from collecting REL data. Although programs receiving financial assistance from the federal government are prohibited from discriminating on the basis of race, color, or national origin under Title VI of the Civil Rights Act, Title VI neither mandates nor prohibits collection of REL data. In Madison-Hughes v. Shalala, the Sixth Circuit Court of Appeals “found no statutory or regulatory requirements pursuant to Title VI that [REL] data be collected, but rather that such data collection is left to HHS's discretion.” “Federal inclusion policies for the collection of [REL] data” do, in fact, “mandate the collection of such data in HHS-sponsored and HHS-maintained data collection activities.” Interestingly, however, “black,” “white,” and “other” were the only race or ethnicity designations included in the CMS administrative database until 1993. “Native American,” “Asian American or Pacific Islander,” and “Hispanic” were added in 1994, *1178 and a 1997 revision separated “Asian American or Pacific Islander” into two distinct categories. Also in 1997, with the adoption of a government-wide REL data collection standard, participants could identify more than one category. Presently, ethnicity is asked first (“Are you Hispanic, Latino/a, or Spanish Origin?” ), and then race (“What is your race?” ).

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) governs many aspects of the collection, storage, use, and disclosure of personal health information. HIPAA also contains no prohibition on the collection of REL data, but the HIPAA Privacy Rule does limit the use and disclosure of such data for purposes other than treatment, payment, and health operations without the patient or plan member's written authorization. Finally, at the time of a 2001 survey, forty-six states and the District of Columbia placed no restrictions on the collection of REL data by health care providers and health plans; California, Maryland, New Hampshire, and New Jersey had some prohibitions against health insurers and/or HMOs collecting REL data; no state policy was found requiring the collection of race or ethnicity data; and Texas required the collection of primary language data.

The changing regulatory and accreditation environment actually has provided support for efforts to collect REL data. “The National Committee for Quality Assurance has developed voluntary accreditation standards for Culturally and Linguistically Appropriate Services that include the collection and use of race, ethnicity, and language data (REL),” and some states, including *1179 Massachusetts and California, have required health plans to collect REL data and report standardized quality of care measures stratified by race and ethnicity. Other states, such as Minnesota, have strongly supported voluntary efforts to collect REL data.

Partnering with the Minnesota Department of Health's Office of Minority and Multicultural Health, the MN Community Measurement (MNCM) has been a pioneer in working with medical groups to standardize the collection of REL data to reduce disparities and improve quality. Despite its significant ultimate success, however, the Minnesota experience encountered substantial barriers to widespread REL data collection, including:

• Data collection is not a priority for many physicians, especially among those who serve in areas with very little diversity[;]

• Staff are reluctant to ask patients about their race, ethnicity, and language[;]

• Information technology systems cannot accommodate the data collection requirements[;]

• Small numbers do not allow for reliable analysis of performance in different groups[;]

• Perceptions by clinical staff that disparities do not exist in their own practice[; and]

• Limited resources to dedicate to data collection activities[.]

Others have noted some resistance to providing REL data from individuals or communities who fear potential misuse of the data, such as to deny benefits or to deny coverage entirely.

*11807. The Minority Health and Health Disparities Research and Education Act

In his radio address on February 21, 1998, President Bill Clinton used the occasion of Black History Month to celebrate improvements in our nation's health over the prior six years and to decry “the alarming fact that too many Americans do not share in the fruits of our progress, and nowhere are the divisions of race and ethnicity more sharply drawn than in the health of our people.” In announcing his goal to eliminate racial and ethnic disparities in infant mortality, diabetes, cancer screening and management, heart disease, AIDS, and immunization by 2010, President Clinton went on to say:

We do not know all the reasons for these disturbing gaps. Perhaps inadequate education, disproportionate poverty, discrimination in the delivery of health services, cultural differences are all contributing factors. But we do know this: No matter what the reason, racial and ethnic disparities in health are unacceptable in a country that values equality and equal opportunity for all. And that is why we must act now with a comprehensive initiative that focuses on health care and prevention for racial and ethnic minorities.

Recognizing “continuing disparities in the burden of illness and death experienced by African Americans, Hispanics, Native Americans, Alaska Natives, and Asian Pacific Islanders, compared to the U.S. population as a whole,” Senate Bill 1880, sponsored by Senator Edward Kennedy (D-MA), was signed into law by President Clinton on November 22, 2000 as the Minority Health and Health *1181 Disparities Research and Education Act (MHHDREA). Notably, MHHDREA was not just a minority health bill. The bill's authors also recognized that despite a higher proportion of racial and ethnic minorities in the United States represented among the medically underserved, the “largest numbers of the medically underserved are white individuals, and many of them have the same health care access problems as do members of minority groups.” Congress found that “[n]early 20,000,000 white individuals live below the poverty line with many living in nonmetropolitan, rural areas such as Appalachia, where the high percentage of counties designated as health professional shortage areas (47 percent) and the high rate of poverty contribute to disparity outcomes.”

One of the major provisions of MHHDREA was the elevation of the Office of Minority Health at the National Institutes of Health (NIH) to the Center for Minority Health and Health Disparities (CMHHD). Supported by an initial budget of approximately $150 million, and the guidance of Dr. John Ruffin as its first director, the purpose of CMHHD was to conduct and support research, training, dissemination of information, and other programs with respect to minority health conditions and other populations with health disparities. Additionally, MHHDREA: (1) directed the Agency for Health Care Research and Quality to conduct and support research on health disparities, (2) directed *1182 the National Academy of Sciences to conduct a comprehensive study of HHS systems and practices “[related] to the collection of data on race or ethnicity,” (3) provided grants for the “training and education of health professionals for the reduction of disparities in health care outcomes and the provision of culturally competent health care,” and (4) ordered HHS to “conduct a national campaign to inform the public and health care professionals about health disparities in minority and other underserved populations by disseminating information and materials available on specific diseases affecting these populations and programs and activities to address these disparities.” CMHHD administered an aggressive agenda of research, training, and education until it “was re-designated to the National Institute on Minority Health and Health Disparities (NIMHD) with the passing of the Patient Protection and Affordable Care Act” in 2010.

B. State Law

1. State Constitutions and Legislation

Overall population health and health disparities differ significantly from state to state in America, and across population subgroups within each state. Similarly, states differ significantly in *1183 their recognition of a right to health. As summarized by Professor Elizabeth Weeks Leonard:

The text of state constitutions reveals certain trends. Some constitutions arguably create enforceable rights. Others merely recognize health as an important value, public concern, or aspiration. Some contain mandatory language that the state or, specifically, state legislature, “shall pass suitable laws” or “shall provide” for the health of citizens. Other constitutions identify the state's power or authority over health but do not establish a duty. In addition to varying strength of rights-creating language, state constitutions differ in their inclusiveness. Some limit the right or duty to the indigent, insane, or other vulnerable members of society. Other constitutions specify types of services, such as public health or hospital care.

Professor Leonard notes, however, that like the federal Constitution, all of the state constitutional provisions “fall well short of a broad guarantee of health.”

Likewise, wide variations exist among states with respect to their laws, policies, and practices to detect and/or eliminate health disparities. For example, in their effort to evaluate state and local effort, leadership, capacity, and infrastructure to reduce health disparities, Amal Trivedi and co-authors developed and reported criteria for a state minority health policy “report card.” The results of applying the tool to all fifty states reveal wide variations, with geographic location within the nation being a significant predictor of performance. The study concluded that Western states had larger insurance disparities, less diverse physician workforces, and were less likely to have an Office of Minority Health than the national average; states in the West region reported more race and ethnicity categories in their vital statistics reports than the national average; and states in the South had significantly fewer insurance disparities and collected data in fewer vital statistics categories than the other states. The authors found *1184 no association between performance and state fiscal capacity. Interestingly, however, there was a statistically significant inverse relationship between the percentage of minorities within a state and the diversity of the physician workforce, such that “states with the highest proportion of racial and ethnic minorities had physician workforces that were the least reflective of their demographic composition.”

While these offices have various titles, structures, authorities, procedures, and priorities, every state now has some form of office dedicated to minority health or health equity, all sharing the common goal to improve health disparities within their state. Many states have completed disparities impact studies, and most have prepared or are in the process of preparing state plans to reduce racial and ethnic health disparities. As summarized in Table 1 of this Article, all but eight states have passed some form of minority health and/or health disparities legislation. Consistent with the principles of state autonomy embodied in the Tenth Amendment of the U.S. Constitution, the states continue to be the most active source of laws and regulations addressing health disparities, with over one hundred bills addressing various aspects *1185 of health disparities introduced in the council of the District of Columbia and the legislatures of twenty-seven states during 2014.

Minnesota was among the first states to recognize and formally combat health disparities. Alerted to the problem of health disparities in populations of color and American Indians in a 1987 report by the Minnesota Center for Health Statistics, Minnesota established the Office of Minority and Multicultural Health in 1993. From 1997 to 2009, the state produced an annual Populations of Color: Health Status Report to provide the foundation for the data collection, analysis, decision guidance, and actions to follow.

In a pair of reports released prior to the publication of Unequal Treatment, Minnesota groups studied health disparities and issued recommendations for their elimination. In the report titled Closing the Gap: A Public Health Report on Health Disparities, the Metro Minority Health Assessment Project found significant race-based disparities in infant mortality, prenatal care, immunizations, low-birth-weight babies, sexually-transmitted disease, suicide, and life expectancy.

*1186 The report recommended that public health officials:

Look for answers “outside of what has traditionally been considered the realm of public health,” including discrimination, housing, employment and education;

Increase the role of minorities in health professions;

Educate community leaders and the public about the benefits of reducing health disparities;

Increase quality and availability of interpreters in health and social service;

Improve racial and ethnic information in health data.

In the second report, titled A Call to Action: Advancing Health for All Through Social and Economic Change, the Social Conditions and Health Action Team of the Minnesota Health Improvement Partnership concluded that:

People with higher incomes have better health and live longer than do those with lower incomes;

People are healthiest when they feel “safe, supported and connected” to family, neighborhood, workplace and community members;

Workers are healthiest when they believe their job is secure, the work they produce is “important and valued,” the workplace is safe and there are “ample opportunities for control, decision-making, advancement and personal growth.”

Based on these findings, the group advised the state to:

Build a “representative and culturally competent workforce;”

Identify ways to more actively involve community members and groups in health improvement;

Establish stable funding and leadership to “support innovative long term collaborative efforts with potential to achieve and sustain change;” and

*1187 Strengthen assessment, evaluation and research of racial disparities . . . .

“To target racial and ethnic health disparities, Gov. Jesse Ventura (I) . . . earmarked $13.9 million in his proposed budget to address minority health problems, and the health department . . . made eliminating disparities a ‘primary goal.”’ With the 2001 passage of Minnesota Statutes section 145.928, creating the Eliminating Health Disparities Initiative, Minnesota became one of the first states in the United States to pass a legislative mandate to reduce health disparities.

Fourteen states (Alabama, Alaska, Arkansas, Hawaii, Illinois, Louisiana, Michigan, Mississippi, Missouri, Montana, New York, North Carolina, South Carolina, and Wyoming) also have specific references to health (or language regarding “‘[b]eneficent provision’ for the needy” that has been interpreted to include health care) in their state constitutions. However, where state constitutions extend enforceable rights to health care at all, they tend to extend such rights to certain “vulnerable groups,” including the mentally ill, indigent persons, and prisoners. Notably, no state constitution contains specific reference to minority health or health disparities.

2. Tort Law

Much of the discussion regarding racial and ethnic health disparities involves systemic determinants of disparate care and large scale economic, political, social, and legal approaches to achieving health equity. Conversely, two objectives of tort law-- deterrence and redress--seek broad societal benefits by dissuading individual actors from engaging in derelict behavior and compensating individual victims injured by such behavior. Since *1188 recent studies strongly suggest that conscious or unconscious physician bias in the individual patient-physician interaction plays a significant role in contributing to disparities, a patient subjected to substandard care at the hands of a racially biased caregiver could (at least theoretically) have a cause of action in tort law against the derelict caregiver.

The success of a tort claim for medical malpractice depends on the plaintiff's ability to prove negligence on the part of a caregiver. A finding of medical negligence, in turn, depends on the caregiver's departure from the generally accepted standard of care. If, then, personal bias leads a caregiver to deviate from the professional standard of care and a patient suffers injury as a result, the caregiver may be liable. Notably, however, the fact that bias resulted in the substandard care is irrelevant in the case; the nature and effects of the substandard care are the focuses of the inquiry, not the bias that motivated the substandard care. In other words, racially biased physicians cannot be sued for bias alone--only for substandard care, and then, the reason for the substandard care is irrelevant.

Furthermore, since health disparities resulting from clinical discretion tend to fall within the bounds of generally accepted clinical variations, “so long as a defendant has not acted far outside the bounds of generally accepted standards, he or she can easily turn a suit stemming from racial disparity in medical treatment into a dispute over the proper standard of ‘reasonable care.”’ Ultimately, therefore, individuals seeking redress for racial disparities in medical treatment will not likely find a resolution in bringing a medical malpractice claim.

C. International Law

In 2012, Sara Bleich and co-authors summarized the policy commitments and activities to address health inequalities in nine *1189 countries (Australia, Canada, Finland, Netherlands, New Zealand, Spain, Sweden, United Kingdom, and United States), identifying whether the relevant activity is focused primarily on information (descriptive reports or data), priority setting (policy actions or documents that include goals, objectives, or targets), or action (activities that change programs or law or that create accountability to the public). These authors concluded that, compared with several decades ago, understanding of health inequalities has increased tremendously, and reduction or elimination of health inequalities has become a policy target for many developed countries. However, progress to reduce health inequalities at the national level varies by health indicator, and “[l]arge gaps remain in our understanding of the mechanisms underlying health inequalities and the most effective methods for evaluating progress toward the reduction or elimination of health inequalities.”

Beyond the intranational issues, efforts to reduce racial and ethnic health disparities have international implications as well. Two international treaties--the International Covenant on Economic, Social and Cultural Rights and the International Covenant on the Elimination of All Forms of Racial Discrimination--have direct provisions addressing racial inequities in health and health care.

1. International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights (ICESCR) provides the most comprehensive article on the rights to health in international law. In interpreting article 12 of ICESCR, the United Nations Committee on Economic, Social and Cultural Rights defines the right to health to include four *1190 interrelated and essential elements: availability, accessibility, acceptability, and quality of health care. Notably, the element of accessibility includes “non-discrimination [[in access to] health facilities, goods and services . . . [to] marginalized groups such as ethnic minorities . . . .” Acceptability of health care, according to the committee, requires that “[a]ll health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned.” To date, ICESCR has been ratified by 164 countries. Although the United States signed ICESCR on October 5, 1977, and despite the urging of Presidents Carter and Clinton, Congress has not ratified the Covenant.

2. The International Convention on the Elimination of All Forms of Racial Discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) prohibits racial discrimination, defined as:

Any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

*1191 Although the U.N. General Assembly adopted CERD by unanimous vote in 1965 and the United States signed the treaty on September 28, 1966, the U.S. Senate did not ratify CERD until October 21, 1994--nearly three decades later. Article 2 of CERD requires that signatory states: (1) not practice racial discrimination; (2) not “sponsor, defend or support racial discrimination”; (3) review existing laws and regulations and amend or revoke those that cause or perpetuate racial discrimination; (4) “prohibit and bring to an end, by all appropriate means, including legislation,” racial discrimination; (5) encourage means that eliminate barriers between races and discourage racial division; and (6) take, when warranted, “special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms” to guarantee “the full and equal enjoyment of human rights and fundamental freedoms.”

Moreover, article 5(e)(iv) of CERD specifically requires that parties

undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of . . . [t]he right to public health, medical care, social security and social services.

However, upon signing the Convention, the United States declared:

The Constitution of the United States contains provisions for the protection of individual rights, such as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with *1192 the provisions of the Constitution of the United States of America.

Furthermore, the United States ratified the Convention with three reservations limiting its consent to be bound by several of CERD's provisions, including certain “protections of [the] individual freedom of speech, expression [or] association,” and “individual privacy and freedom from governmental interference in private conduct.” Finally, the United States declared that the provisions of CERD are not self-executing, and that “before any dispute to which [it] is a party may be submitted to the jurisdiction of the International Court of Justice under [CERD], the specific consent of the United States is required in each case.”

The United States' reservations notwithstanding, Professor Vernellia Randall argues that “U.S. health policy is inconsistent with several provisions of CERD, including virtually all of Articles 2 and 5” since federal agencies have consistently failed to address problems of discrimination and bias found in the American healthcare system. Citing current trends toward managed care as a source of worsening disparities and bias across a broad range of access, treatment, diagnostic, funding, and training issues for racial minorities, Randall provides the CERD Committee on the Elimination of Racial Discrimination (the CERD Committee) with several recommendations. Specifically, she argues that the CERD Committee should: (1) “clearly define the current situation related to health care for minorities in the United States . . . to be a violation” of CERD; (2) “make it clear to the United States that ‘justifiable’ discrimination does not include racial discrimination *1193 resulting from policies and practices that limit access and quality of health care received[,]” or “that have a disparate impact where there is an alternative that would either not discriminate or have less impact”; (3) “ask the United States to make significant [and broad] progress . . . in eliminating disparities in health and health care”; and (4) “ask the United States to develop a unified data-collection system in government programs . . ., which would allow easy determination of facilities, providers, and organizations that discriminate in the diagnosis and treatment of illness.”

In response to American reports submitted to CERD for consideration at its meeting on March 5, 2008, the CERD Committee recognized “the wide range of measures and policies adopted by the [United States] to improve access to health insurance and adequate health-care services,” but expressed concern that “a large number of persons belonging to racial, ethnic and national minorities still remain without health insurance and face numerous obstacles to access to adequate health care and services.” The CERD Committee recommended that the United States

continue its efforts to address the persistent health disparities . . . by eliminating the obstacles that . . . prevent or limit their access to adequate health care, such as lack of health insurance, unequal distribution of health-care resources, persistent racial discrimination in the provision of health care and poor quality of public health-care services.

The CERD Committee made special note of persistent disparities

in the field of sexual and reproductive health, particularly with regard to the high maternal and infant mortality rates among women and children belonging to racial, ethnic and national minorities, especially African Americans, the high incidence of unintended pregnancies *1194 and greater abortion rates affecting African American women, and the growing disparities in HIV infection rates for minority women.

To combat these inequities, the CERD Committee recommended that the United States (i) improve

access to maternal health care, family planning, pre-and post-natal care and emergency obstetric services, inter alia, through the reduction of eligibility barriers for Medicaid coverage; (ii) [f]acilitat[e] access to adequate contraceptive and family planning methods; and (iii) [p]rovid[e] adequate sexual education aimed at the prevention of unintended pregnancies and sexually-transmitted infections.