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Excerpted from: Wendy E. Parmet, The Worst of Health: Law and Policy at the Intersection of Health & Immigration, 16 Indiana Health Law Review 211 (2019) (161 Footnotes) (Full Document)


WendyEParmetThis symposium, The Intersection of Immigration Law and Health Policy, could not be timelier. Almost every day since President Trump's inauguration, the news has brought yet another story about immigration and health: we hear about children dying while in the custody of the border patrol and about the long-term health effects of children who were separated from their parents at the border. We read about immigrant minors being denied access to reproductive health services, and about children being stopped by Immigration and Customs Enforcement (“ICE”) on their way for emergency surgery. Physicians report that fearful patients are failing to show up for their medical appointments, and researchers report that immigrants have refused to enroll their infants in child nutrition programs for fear that doing so could lead to their own deportation. Hospitals and other health care providers worry about workers, whose ability to remain employed may be threatened by the possible termination of DACA, or who may be unable to come to this country and provide care because of the travel ban or cut backs on visas. Meanwhile the Administration has proposed new proposed public charge regulations, which if promulgated, may cause millions of lawfully present immigrants to forego a broad array of programs that support health, including Medicaid and food stamps. All of these incidents, and many more, illustrate that when nativist immigration policy meets health law, health policy and public health tend to suffer. The health care system covers fewer people, while becoming costlier and less efficient. Public health is also jeopardized as punitive and futile efforts to keep diseases out by excluding or punishing newcomers replace evidence-based public health solutions. More subtly, when immigration and health policy meet, we lose sight of why the health policy exists in the first place is lost.

This essay explores these issues, examining why and how laws and policies at the intersection of health and immigration are frequently problematic for both health policy and public health.

Part I begins by noting that the troubling relationship between immigration and health law is both longstanding and international in scope.

Parts II and III explore the impact of the interjection of immigration policy into health law, discussing in Part II how it adds to the complexity and inefficiency of the health care system and in Part III, how it harms public health.

Part IV elucidates those claims further by exploring the potential health impact of the proposed public charge regulations.

Part V concludes by arguing that the battles over immigration and health both reflect and shed light on deeply-seated divisions over the nature of community, the scope of solidarity, and the underlying rationale for health policy and law. I also argue that health laws' treatment of immigrants forces us to consider the basic rationales for health law. That inquiry offers the possibility of a richer and deeper appreciation of the ethical foundations for health law.

[. . .]

Despite the current climate of ethno-nationalism, we see signs of this occurring, not only in the exceptions to the exclusionary policies, and the policies that provide for the health of newcomers, but also in the demonstrations by doctors against the travel ban, the statements of physician groups protesting family separation, and the innumerable non-governmental organizations that are fighting for better health for all members of their community. Thus, solidarity can and has been forming around health. From there it can potentially extend to other domains, challenging structures of social injustice. Bruce Jennings explains, “Solidarity begins with the recognition of reciprocal and symbiotic interdependence among members of a moral community and then intervenes in-interrupts-an ongoing community when it is unjustly exclusionary and refuses to recognize the moral standing of some within it.” Or, to put it another way, the solidarity that forms in health can force us to see and then demand a wider recognition of each other's humanity.

Perhaps this is why the battles over health and immigration are so contentious. The laws and policies that lie at the intersection of immigration and health are not simply about the health of immigrants. Rather, the barriers that are imposed on the health of immigrants are structures designed to thwart the formation of solidarity and the rejection of intolerance. And the exceptions to the exclusions and the resistance to those barriers are reminders of why we have health care systems and laws to support them: because we are human.

JD, Harvard Law School; BA Cornell University.

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