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Excerpted From: Dayna Bowen Matthew, Structural Inequality: The Real Covid-19 Threat to America's Health and How Strengthening the Affordable Care Act Can Help, 108 Georgetown Law Journal 1679 (May 2020) (226 Footnotes) (Full Document)


DaynaBowenMatthew“Health equity” is all the rage. Health systems, hospitals, clinics, and even insurers have bought into the proposition that achieving health equity-- eliminating health disparities that grow out of persistently systemic inequality a top priority for delivering cost-effective, high-quality healthcare. Thousands of dollars are being spent to hire specialists, promote campaigns, and create new initiatives across the country that address the persistent prevalence of racially disparate health outcomes. And yet, as the tragically disproportionate morbidity and mortality rates suffered by African-Americans in this country during the global COVID-19 pandemic demonstrated, America is still far from achieving health equity.

Gradually, healthcare providers, ranging from individual clinicians to the largest hospitals and integrated healthcare systems, have recognized that it is pervasive social inequality, which denies marginalized populations equal access to the social determinants of health--housing, employment, education, food security, and the environment, for example--that drives disparate health outcomes. This Essay addresses two lessons America must learn from the COVID-19 pandemic in order to survive. Both lessons are about structural equality. The first is that structural inequality threatens the health of our entire population, not just the health of the poor. The COVID-19 pandemic laid bare the fallacy of imagining that inequality is only a problem for the marginalized among us. Although it is all too true that the pandemic did disproportionately ravage poor neighborhoods as compared to wealthy ones, killed more blacks than it did whites, and afflicted the elderly more severely than the young, by attacking the most vulnerable, it crippled us all. The virus shut down at least one-quarter of the U.S. economy. And no community was isolated from the dangers the disease presented to “essential” workers who delivered groceries, taught and cared for children, or provided healthcare for everyone. The threat of death and economic destruction touched all. We will ignore the disproportionate devastation suffered by the least wealthy among us to our collective peril. The second lesson is that the greatest threat to our health as a society is the inequality that characterizes our social infrastructure. The virus ripped through neighborhoods where good food is scarce, decent housing is limited, and people work for substandard wages. Our public transportation systems corralled those disproportionately exposed populations together daily as they traveled throughout cities and neighborhoods to keep food on the shelves and garbage out of the streets. Our collective health depends upon addressing the structural inequities that plague the social determinants of health for us all. Moreover, I argue here that the key to overcoming these challenges lies in health providers and lawmakers uniting to dismantle structural inequality.

This Essay focuses first on the provider's role in addressing public health inequities caused by inequities in social determinants. Some innovators are notable. Kaiser Permanente, the nation's largest integrated health system, is investing $200 million in Oakland, California, toward supportive housing for the homeless. This provider is also investing in affordable housing development for people displaced by gentrification because, Kaiser explains, “[h]ousing stability is a key factor in a person's overall health and well-being.” In another example, a Brockton, Massachusetts, federally qualified health center that serves a Cape Verdean community has co-located with a supermarket that specializes in tropical foods to improve health. Together, they serve patients in one building. This cooperation allows residents of the low-income neighborhood to have access to a full-time nutritionist, who works with chronically ill clinic patients who have diabetes, while using the facility's teaching kitchen to learn how to prepare and eat healthy foods that appeal to the immigrant community. With food prescriptions from the clinic, and shopping lists from the nutrition expert, patients can walk next door to the grocer to shop for culturally appropriate food. The safety-net clinic moreover brings 100 full-time jobs to a neighborhood where over twenty-five percent of residents live below the poverty line. This partnership of medical and food services “will make it that much easier for residents to access these critical services, improve their health, and start to transform their quality of life.” In a third example, the largest safety-net hospital in Denver, Colorado combines healthcare with an intervention aimed at reducing street violence. Denver Health provides trauma-informed care to “interrupt the cycle of violence among Denver's at-risk youth and young adults.” Patients leave the hospital with mentoring, counseling, and home visits during and after a hospital stay because, according to Denver's Public Health Department, “violence is a health issue.”

These healthcare innovations share several important features in common. First, by enlarging their scope beyond healthcare, they adopt a public-health approach to improving population health rather than simply delivering care to individuals. The providers have designed interventions that address the underlying social causes of disease rather than just the diseases themselves. Second, the health services are delivered through collaborative partnerships. Traditional healthcare providers--a health system, clinic, and hospital--have joined with nonmedical partners--housing developers, a grocer, and law enforcement--to increase the quality and effectiveness of their medical services. And third, these providers' interventions treat the health impacts of inequality that are at the root of the disparate medical problems their vulnerable patient populations face. Inequitable access to decent, affordable housing; inequitable distribution of healthy food; education disparities; and disproportionate exposure to violence and childhood trauma are four examples of the inequalities that these health providers have confronted in order to promote good health. Together, the aggregate effect of inequity in each of these social domains combines so that adversity becomes cumulative and structural. Sociologists have defined structural inequality as “an inequality in the distribution of a valued resource, such as wealth, information, or technology, that brings social power.” Structural inequality delivers cumulative advantage to the affluent--and cumulative disadvantage to others--by disparately allocating access to education, employment, housing, food, healthcare, political power, and legal representation.

The empirical evidence of growing structural inequalities is compelling. By all measures, inequalities that separate the advantaged from the disadvantaged in America are severe and worsening to levels not seen since the Great Depression. The top one percent of earners take home twenty percent of the nation's income, while the bottom fifty percent of the population earns less than thirteen percent of national income. Wealth inequity is even more concentrated; the top one percent of households hold nearly forty percent of all wealth, while the bottom ninety percent share less than a quarter of the nation's wealth. Middle-class families are suffering the most from the widening inequity gaps, especially racial and ethnic minorities as compared to white families. As a result, social and economic inequity characterizes all sectors of society. Educational inequity is particularly pernicious. It not only limits current life choices, but also constrains social mobility for generations, confining a perpetual underclass into neighborhoods characterized by concentrated poverty, discriminatory policing, food insecurity, and tragically disparate poor health outcomes.

Structural inequality is directly associated with poor health in the United States and globally. Sir Michael Marmot convincingly demonstrated this correlation by empirically describing an inverse linear relationship between relative wealth and health which he called, “the social gradient.” In Great Britain, its national health-insurance system notwithstanding, Sir Marmot's Whitehall Studies showed that social-class differences drive differences in health status. Nancy Scheper-Hughes' qualitative research carefully illustrated the desperate correlation between abject poverty and children's dismal health outcomes in her heart-wrenching ethnography about life in Brazil's slums. Similarly, in the United States, research shows that widening gaps in income inequality predict increasing differences in life expectancy; and differences in life expectancy are directly related to gaps in educational attainment. However, these vast social inequities are well beyond the capacity of the healthcare industry to address on its own.

The global COVID-19 pandemic provides the most recent and disturbing proof that structural inequality is a causal factor in producing deadly health disparities, and that a massive legal intervention will be required to correct it. First reported as a pneumonia of unknown cause in Wuhan, China, by January 30, 2020, the World Health Organization declared the coronavirus outbreak a Public Health Emergency of International Concern. Worldwide, the poor in developing nations, especially where populations live in densely populated areas with limited public health infrastructure, were likely to be the most severely affected by the crisis. In the United States, the earliest data showed that African-Americans contracted and died from COVID-19 at disproportionately high rates. In “hotspot” areas such as New York City, Milwaukee, Louisiana, and Chicago, black and LatinX populations were decimated because they are over-exposed to several structural risk factors for COVID-19. They are overrepresented among low-wage workers whose jobs do not allow them to stay home and shelter in place to avoid exposure. Moreover, these communities are more likely to live in densely populated urban neighborhoods and communities traumatized by violence and poverty. African-American and LatinX neighborhoods typically have inferior access to quality healthcare; are more likely located proximate to environmental pollution hazards; and are less likely to contain ample green and recreational spaces. In addition, these populations have inferior access to early diagnostic and aggressive therapeutic care, and therefore, are susceptible to underlying comorbidity risks such as diabetes. The temptation is to cast these disproportionalities as individual-level failings of health behavior or heredity. Although individual factors are not irrelevant, the most powerful explanation for minority populations' susceptibility to the COVID-19 disease and its devastation is the structural inequality that characterizes their lives and historic experiences in this country. In short, inequitable societies are the most vulnerable, least safe, and least healthy in the world. That is why healthcare providers, public health professionals, and sociologists have become preoccupied with addressing structural inequality. This Essay invites legal scholars to join this life-and-death conversation.

Some legal scholars have acknowledged the ethical and moral contradiction to our nation's founding principles that vast social inequality represents. However, the fact that the relationship between legally enabled social inequality and poor population health is underappreciated is far more than an intellectual oversight. The nation's Declaration of Independence begins with the pronouncement that all lives have equal, intrinsic worth. The Fourteenth Amendment embeds this equality principle into our Constitution as a foundation of American law. As stated by Justice Brennan, “[T]he rock upon which our Constitution rests .... the judicial pursuit of equality is ... properly regarded to be the noblest mission of judges.” Even the late Justice Antonin Scalia cheered for the equality principle when he praised its legal articulation, saying, “The Equal Protection Clause epitomizes justice more than any other provision of the Constitution.” However, it must be admitted that “[e]quality remain[s] an unresolved and multipronged dilemma” in this country.

Equality can conceptually confound even the most astute analysts, as this theorist's internally inconsistent distinction between equality and rights evinces:

Equality is commonly perceived to differ from rights and liberties. Rights are diverse; equality is singular. Rights are complicated; equality is simple. Rights are noncomparative in nature, having their source and their justification in a person's individual well-being; equality is comparative, deriving its source and its limits from the treatment of others. Rights are concerned with absolute deprivation; equality is concerned with relative deprivation. Rights mean variety, creativity, differentiation; equality means uniformity. Rights are individualistic; equality is social. Or so it is said.

Unable to decide whether equality is “singular” or “comparative,” “simple” or “relative,” Peter Westen concludes that equality is a substantively “empty idea” that “should be banished from moral and legal discourse as an explanatory norm.” He is wrong. However, this likely explains some of the judicial lack of commitment to the equality principle that has adversely affected the lives of those the constitutional doctrine was intended to protect. Enforcing the equality principle necessarily confronts a strong opposition. For example, equality claims can compete with a set of principles that protect individual liberty and autonomy. Thus, courts often have turned to liberty-based analysis to replace old-fashioned equal protection for civil rights claims, as Kenji Yoshino explains. Equality and liberty must be linked in order to find, in his account, a new form of hybrid claim that accounts for the exhaustion that has resulted from seemingly endless equal protection claims from aggrieved groups. Yoshino calls this, “pluralism anxiety,” and argues it warrants limiting traditional conceptualizations of equality. Thus, lamenting the Supreme Court's decreasing appetite for enforcing the Equal Protection Clause, Yoshino has pronounced the “end of equality doctrine as we have known it.” He is not wrong. Although Yoshino properly identifies the salient change to be a jurisprudential shift in how courts enforce the equality principle, he does not make the mistake that Westen does by improperly presuming the Court's irreconcilable interpretations of equal protection, or that changing public opinion has the power to eliminate the transcendent morality of the equality principle.

This Essay sounds an urgent alarm, calling for the equality principle embodied in the Fourteenth Amendment's Equal Protection Clause to be revived, and put to work. This Essay posits that a continued jurisprudential failure will ensure that structural inequality will continue to threaten the health of America's populations and institutions. Indeed, a primary reason America's progress toward health equity has been slow and uneven is because our legal conceptualization of equality has lost its way. As a consequence, antidiscrimination law--provisions enacted to prohibit actions that destroy equality based on race, nationality, gender, sexuality, and other protected statuses--has been neutralized. As a result, discrimination has been allowed to create, maintain, and even strengthen the structural inequalities that lie at the root of all health disparities. Moreover, I argue that the jurisprudential contributor to this failing and progressive abandonment of the commonsense meaning of equality has corrupted our Constitution's equal protection guarantee. From a public health standpoint, returning the equality principle to American jurisprudence is vital to ensuring equitable access to the social determinants of health. Indeed, I argue that finally living up to this nation's promise of laws that protect the equality of all is the imperative required to reverse the structural inequality that threatens us all.

The premise of this Essay is that to eradicate health disparities, America's equal protection jurisprudence must once again become a useful tool in the fight to reverse the systemic discrimination that characterizes the major social determinants of health. Inequitable access to housing, education, and community safety are at the root of the health injustices that we politely call “health disparities.” Health inequity is due primarily to our nation's disregard for the equal humanity of minorities with white populations. This disregard, it turns out, is an adverse indicator for the health of both majority and minority populations. Indeed, the departure from an equality principle that protects the inalienable right of every member of society to enjoy an opportunity to pursue a healthy life does damage to the shared moral fiber of the nation, as well as to its collective health and well-being.

I make this argument in three Parts. In Part I, I outline the conceptual framework of the equality principle that animated the drafters of the Equal Protection Clause when it was ratified. I contend this same principle should drive antidiscrimination law today. Unfortunately, it does not. The first Part highlights the departure from “equal protection of the laws” in theory to the current unequal protection of the laws that prevails in the United States today. In Part II, I show the effect of this departure on equal access to decent and affordable housing, safety, recreation, food security, education, and wealth for minority populations. I connect these inequities to the disparate health outcomes that minority populations suffer. Part III suggests building upon the steps toward implementing a public health agenda to address health inequality taken by drafters of the Patient Protection and Affordable Care Act (the Affordable Care Act or ACA). The ACA allowed some demonstrable progress toward an equitable distribution of healthcare, and thereby began to move the needle toward reducing structural inequality. Moreover, the ACA contains a healthcare civil rights provision, which represents one of the most significant course corrections in the nation's departure from true equal protection of the laws since the 1965 Civil Rights Act. Section 1557 of the ACA prohibits discrimination by health programs and activities that receive federal financial assistance. I argue that if properly enforced, this section of the Affordable Care Act could disrupt the progressively widening gap between the haves and have-nots that threatens our national health, and that has proved deadly to African-American, LatinX, and low-wealth people disproportionately.

[. . .]

The COVID-19 pandemic has robbed us of the luxury of ignoring structural inequality. More specifically, the pandemic demonstrated that structural racism threatens the health and well-being of the entire American population and economy. In the past, we could afford to leave the matter to academic debate. Some scholars take the position that the Equal Protection Clause was never intended to achieve racial equality. Others rely upon the debates following ratification of the Fourteenth Amendment to conclude that the originalist interpretation would have enforced equal educational opportunity as evinced during the Reconstruction Era debates. In this Essay, I have argued that the moral and ethical underpinning of the Constitution's Equal Protection Clause, and of antidiscrimination law more generally, is an egalitarianism principle that must be used to eradicate unjust and avoidable health disparities today. I have examined the recent and compelling evidence of the deadly health impacts of the systemic discrimination that pervade the leading social determinants of health in housing, education, and criminal justice systems. I conclude that systemic racial inequality harms population health in three ways. First, discrimination disrupts access to the basic building blocks known as the social determinants of a healthy life. Social determinants of health are the conditions in which Americans live, work, and play; these are the societal causes behind the causes of health inequity. Differences in social and environmental factors account for an estimated forty percent of health outcomes. Another thirty percent of health outcomes are related to health behaviors that occur within a social context and are therefore also susceptible to environmental influences. Thus, to the extent that racial discrimination affects access to and the quality of these social determinants, health outcomes for blacks and Latinos relative to whites are disproportionately and adversely impacted.

Second, discrimination that violates the equality principle of the Fourteenth Amendment leads to systemic and structural inequalities that disproportionately increase exposure to the stressors that produce anxiety, depression, suicide, and unhealthy behaviors. Taken together, these first two health-harming effects comprise what has been termed “structural inequality” or “institutionalized racism.”

The third harm caused by structural inequality defies the prevailing fallacy that discrimination is only a problem for those who are discriminated against. Data and experience tell us this one-sided account is untrue. Pervasive discrimination harms the health of majority and minority populations. Moreover, the health harms flowing from discriminatory inequity reach further still. Systemic racial inequality leads to societal polarization that increases isolation, stigmatization, stereotyping, fear, and resentment, all of which breed the kind of racial violence that is tragically on the rise in the United States and worldwide. These outcomes challenge the health of populations and violate the foundational notions of equality on which America's democracy depends.

Despite its challenges, the Affordable Care Act must be strengthened to increase equality in access to healthcare, social determinants of health, and reduce exposure to catastrophic health outcomes that threaten us all. The Affordable Care Act has grown in the public's esteem. As of September 2019, the Kaiser Family Foundation reported that fifty-three percent of Americans had a generally favorable opinion of the ACA (climbing steadily as compared to a low in March 2014) and forty-one percent had an unfavorable opinion (steadily declining from a high in March 2014). The most unfavorably viewed provision of the Act--the individual mandate--maintained high disapproval rates, hovering at sixty-three percent until 2017 when Congress effectively eliminated it by reducing the penalty to $0 in 2019. As a result, of the COVID-19 pandemic, finding a way to replace even this most unpopular provision in order to universalize healthcare coverage in the United States, might become one of our most viable equality tools of all.

This Essay begins a conversation in which legislators and policymakers may be challenged not merely to return to the “original intent” of the Constitution or its Fourteenth Amendment, but to the “original, original intent” of the Equal Protection Clause aspiration that the law would value all people as their Creator does. The Amendment was then and must today be understood to put a stop to the oppressive use of law to distinguish one group of people from another on the basis of skin color or national origin. The meaning of “equal” then and now requires that any law that operates to distinguish the life chances of one group from another be corrected. The meaning of “equal” in the Amendment must be understood to refer to essential, equal humanity of all people who in that organic document are now to include “all who are created equal” before God. During the COVID-19 crisis, healthcare workers stood on America's frontlines and fought for victims' health and lives at the expense of their own. By February 2020, fifty percent of those exposed to the virus were healthcare workers. It is fitting that lawmakers join healthcare providers to realize this plain meaning of equality and eliminate unequal protection of the laws for the good of us all.

William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law, F. Palmer Weber Research Professor of Civil Liberties and Human Rights, and Professor of Public Health Sciences, University of Virginia School of Law; Director, The University of Virginia Equity Center; Dean Designate, George Washington University Law School. 2020, Dayna Bowen Matthew

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