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 Abstract

Excerpted From: Yael Cannon, Unmet Legal Needs as Health Injustice, 56 University of Richmond Law Review 801 (Symposium 2022) (461 Footnotes) (Full Document)

 

YaelZakaiCannonIn 2021, Attorney General Merrick Garland issued a call to action to the legal community. The Supreme Court had recently invalidated the nationwide eviction moratorium that was issued by the U.S. Centers for Disease Control and Prevention (“CDC”) in connection with the COVID-19 pandemic, and concerns were mounting about an impending tsunami of evictions. The Attorney General emphasized that evictions were expected to spike to double the prepandemic levels. Six million Americans reported being behind on rental payments, and three million expected to be evicted in the coming months. Noting the critical role of lawyers in helping people understand their rights and receiving legal representation in eviction cases, Garland issued a call to action. He asked legal services attorneys, private attorneys engaging in pro bono work, and law schools across the country to mobilize and engage in eviction prevention and mitigation efforts on behalf of low-income tenants. In support of the Attorney General's call to action, pledges of support and commitments to mobilize the legal community were made by the President of the American Bar Association (“ABA”), dozens of law school deans across the country, and the Legal Services Corporation.

The eviction crisis unfolding in this country demands such a mobilization of attorneys not only because it is a crisis of justice but also because it is a public health crisis. Matthew Desmond, author of the critically acclaimed book Evicted, recently wrote about the deep connections between eviction and health. Those who are evicted face the prospects of a panoply of poor health and mental health outcomes. In children, evictions have been connected to low birth weight, premature birth, and infant mortality. In adults, evictions have been linked to a number of health complications including increased rates of suicide, hospitalizations, drug use and relapse, and all-cause mortality. The CDC has identified stable housing as critical to better health outcomes, noting that evictions damage public health. During this pandemic, a tsunami of evictions would signify a public health crisis layered on top of an ongoing public health crisis.

The connections between housing security and health are representative of the role of housing as an important social determinant of health (“SDOH”). A growing body of research recognizes that our health is driven less by our biology and the care we receive at the doctor's office. Instead, as much as 80% of a person's health is driven by SDOH, which are the social conditions in which we live, eat, work, learn, and age.

The COVID-19 pandemic has only sharpened our understanding of housing as a SDOH and the connections between housing stability and health. Local moratoria on evictions decreased cumulative deaths by 11% and moratoria on utility disconnections decreased cumulative deaths by 7.4%. A study by the American Journal of Epidemiology found that states that ended their eviction moratoria before the federal moratorium began experienced twice the incidence of COVID-19 and a five-fold increase in mortality compared to states that maintained their moratoria. The study estimates 433,700 excess cases and 10,700 deaths nationally due to state terminations of eviction moratoria. These data underscore that housing security is critical to health.

Both the eviction crisis and the pandemic have not exacted their tolls with equity; Black individuals are more likely to face eviction and have suffered disproportionate outcomes during the pandemic, with higher rates of infection, hospitalization, intensive care unit treatment, and death. Other communities of color, such as indigenous communities, have also suffered disproportionately from the impacts of COVID-19. These connected crises of evictions and the COVID-19 pandemic are therefore not only broad public health crises; they are crises of health inequity.

The Attorney General's call to mobilize attorneys to prevent evictions comes amidst attention to the civil justice gap, a phenomenon in which many Americans have unmet civil legal needs, not only in housing but other areas of law. Research shows that 86% of civil legal problems reported by low- and moderate-income people receive inadequate or no legal help.

Recent calls for access to justice to address the legal needs of low-income litigants who cannot afford counsel go well beyond Attorney General Garland's call to action. For example, President Biden recently issued a memorandum reconvening the Department of Justice's Access-to-Justice Function and reinvigorating the White House Legal Aid Interagency Roundtable to examine the impacts on justice in the civil and criminal legal systems. These entities came together and reported on “Access to Justice in the Age of COVID,” finding numerous civil legal issues critical and emphasizing the urgency of access to justice efforts to help low-income Americans access legal assistance, resources, and courts.

The pandemic has exacerbated unmet civil legal needs, but calls for access to justice are not new. In a seminal report in 2006, the American Bar Association recognized that millions of low-income Americans have civil legal issues that go unaddressed, jeopardizing their basic human needs for shelter, sustenance, safety, family stability, and access to health care. In that report and an accompanying resolution, the ABA went so far as to call for a civil right to counsel when such fundamental needs are at stake. In recent years, three states and several cities have established a right to counsel for tenants facing eviction, and other legislative efforts have expanded the right to counsel or access to counsel in other civil cases that implicate fundamental areas of human need. Like evictions, all of the areas of fundamental human need identified by the ABA affect health and drive racial and socioeconomic health inequities. When rights in these areas go unenforced for Americans marginalized by poverty and race, their health can suffer, compounding health inequities.

A burgeoning framework known as “health justice” seeks to leverage law and policy to eliminate health inequities experienced by communities marginalized and subordinated by virtue of their race, poverty, and other forms of oppression, in pursuit of health equity. Building on public health's vision of health equity, which is the equal opportunity for all people to achieve health, the term “justice” centers the role of law both as a driver of health inequities and in its potential to promote health equity.

In prior work, I have argued that the health justice and access to justice scholarship and movements are gaining momentum, are deeply connected, and need to be in dialogue to ensure that access to justice efforts advance health equity, which is critical to justice. Building on that work, this Article identifies key areas of law for which unmet legal needs serve as determinants of health and health inequity and envisions a role for lawyers in addressing health injustice through a “clients-to-policy” approach. This Article focuses on fundamental civil legal needs of low-income individuals and argues that they impact health and must be addressed in order to ensure health equity. This is because health equity will remain elusive so long as the fundamental human needs of people subordinated by racism and poverty go unmet. Applying a health lens to fundamental civil legal needs is necessary to show the very high stakes of neglecting those needs, as the health of this nation will suffer and particularly the health of people with low income and people of color. Just as the access to justice movement can benefit from health justice principles, health justice requires the examination and mitigation of unmet legal needs that impact health. Access to justice in fundamental areas of human need must be a core component of the developing health justice framework, as scholars and activists work to build it out. As legal issues in all of the major areas of fundamental need impact health and drive health inequity, there can be no health justice without shelter, sustenance, safety, family stability, and access to health care. And there can be no health justice when the law stands in the way of those fundamental needs being addressed.

To address such needs, the health justice framework needs to go beyond broader explorations of the impact of law and policy and define the role of lawyers in advancing health justice. What is the responsibility of lawyers to promote health justice? How can lawyers representing individuals from communities impacted by health inequities advance the pursuit of health justice? Lawyers can play a critical role and must be mobilized to provide free and low-cost legal representation to low-income individuals in fundamental areas of law that serve as social determinants of health. Access to justice initiatives involve a range of approaches, such as the provision of information about rights, dispute resolution mechanisms, access to courts, the unbundling of legal services, technology to assist and support litigants, the simplification of court processes for pro se litigants, and the development of non-lawyer roles, such as legal navigators, along with access to counsel, to satisfy the unmet legal demand. This Article focuses in particular on the role and importance of lawyers providing full and direct legal representation for low-income litigants in addressing fundamental human needs and ensuring that people are healthy.

Especially as the health justice framework has emphasized the need for major structural reforms to most powerfully and meaning-fully advance health justice, legal representation in individual cases cannot be the only solution and lawyers cannot endeavor towards health justice alone. But the legal profession does have a responsibility for health justice when so many Americans face unmet civil legal needs that harm their health and contribute to socioeconomic and racial health inequities. Engaging with critiques of lawyers as the solution, this Article affirms the importance of direct legal representation to advance health justice and proposes a clients-to-policy approach through which lawyers can use their representation of clients as a platform for structural reforms in pursuit of health equity.

In Part I, this Article examines the health justice framework through which laws are understood as determinants of health equity. In Part II, this Article argues that when unaddressed for low-income individuals, legal needs serve as social determinants of health. Applying the health justice framework, the Article examines the major domains of SDOH and identifies areas of law for which unmet legal needs contribute to poor health and health inequity. Specifically, it analyzes how the five major domains of SDOH of the Healthy People 2030 paradigm of the U.S. Department of Health and Human Services (“HHS”) implicate legal issues in the fundamental area of human need identified as critical for access to counsel by the ABA. This Part explores the exacerbation and urgency of these challenges created by the pandemic and examines racial inequities driven by structural racism that create a compounding burden of health disparities for people who are both low-income and people of color. In line with the health justice framework's exploration of how law can be leveraged to mitigate inequities, Part II concludes by examining how legal representation can address fundamental legal needs that affect health, providing support for access to counsel in these areas.

Finally, in Part III, this Article engages with potential critiques of an emphasis on individual legal representation as a downstream and overly individualistic approach to health justice. This Part addresses these critiques and argues that individual legal representation to enforce extant laws is required for health justice to address the immediate, health-harming legal issues affecting individuals from marginalized communities and improve their health and well-being. However, even though such individual legal advocacy is necessary, it is insufficient. Instead, legal representation should be used as a platform for advocacy in pursuit of structural change through law, policy, and systems reform. This Article proposes a multitiered, integrated clients-to-policy approach for lawyers to facilitate health justice to improve the health of individuals and pursue structural reform to address health equity upstream.

[. . .]

Much of the health justice literature has focused on the values that should drive health justice and the structures that need to be dismantled to promote health equity. This Article adds to the health justice scholarship by providing a lens through which civil legal needs can be understood as social determinants that harm health and as drivers of health inequities. It supports the urgent need for legal representation for those impacted by such health injustice. It also contemplates the operationalization of these ideas through important roles for attorneys serving individuals subordinated by virtue of poverty and race, whether they are legal services attorneys, pro bono attorneys, solo practitioners, small firms providing low bono services or representation by court appointment, or law school clinics. The Article also echoes the call to action of Attorney General Garland for the legal community to prevent evictions and issues a call for lawyers to address health-harming legal issues in all of the areas of fundamental human need identified by the ABA as necessitating counsel. All of the SDOH domains included in Healthy People 2030--housing, economic stability, educational access and quality, social and community context, and access to quality health care--implicate legal issues in the ABA's fundamental human needs paradigm. Health justice necessitates shelter, sustenance, safety, access to health care, and family stability and preservation, and legal needs in all of these areas are especially urgent in light of the impacts and inequities of the ongoing COVID-19 pandemic. Efforts by the ABA, LSC, the National Coalition for a Civil Right to Counsel, and other national organizations, as well as legislation introduced in Congress, state legislatures, and local legislatures to promote access to counsel in fundamental areas of civil legal need are critical not only to access to justice, but to health justice, and can benefit from a health and health equity lens to support their importance.

While the health justice scholarship often emphasizes law and policy reform, lawyers play an important role through enforcement of extant laws to address the immediate and urgent needs of low-income clients--especially those who are also people of color facing a compounding burden of poverty and racism. Although large-scale reforms are the best way to address root causes of inequality and improve the health of populations, in the near term, individuals need help vindicating the rights they already have.

Legal representation is not only important because it helps people while the health justice movement works towards more collective, revolutionary, structural change that can take a long time. Instead, legal representation itself should be viewed as a part of that revolution, as it is critical to the identification of problems with law that necessitate reform and to the development of thoughtful, effective solutions informed by firsthand knowledge of the impacts of law on the ground and by the experiences and voices of affected individuals and communities.

There may appear to be a complex tension between pursuing large-scale structural reforms and focusing on enforcement of extant laws in the pursuit of health justice. But the relationship between individual legal representation and law reform is cyclical and mutually reinforcing. Individual legal representation can serve as the genesis of law reform, where lawyers discover the need for change, have the data, stories, and information to support that need, can use lessons from their casework to shape aspirations for structural change through law reform, and can elevate the power of their clients and affected communities to drive the health justice agenda. At the same time, structural reforms are only effective if they are enforced and implemented properly--even the best-written law will not help anyone if there is no one to enforce it. The COVID-19 pandemic has only underscored the need for such an integrated, multitiered approach; “because emergencies typically exacerbate long-standing and interconnected crises in socioeconomically disadvantaged communities, legal and policy responses must address root problems in addition to immediate needs.”

That dual-track approach to health justice also has lessons for the role of healthcare in facilitating health justice. Scholars have advocated powerfully for the need for “just medicine,” including equity in the delivery of healthcare that can be shaped through law, policy, and systems transformation. What is the role of health care and the field of medicine in addressing law and policy in other domains of SDOH, such as those explored in this Article, outside of the walls of a doctor's office?

The health justice framework could benefit from additional contemplation of the role of providers and healthcare systems in systematically addressing “the many upstream factors that contribute to illness and poor health care outcomes.” In light of the growing recognition that systemic issues cause adverse health impacts, leading medical organizations like the American Association of Medical Colleges and the American Association of Family Physicians have called for health care professionals to center public, systemic health outcomes at both the individual and population health levels. For example, on an individual patient level, physicians can work towards equity within the medical care they provide by incorporating a patient's social context into a diagnosis, understanding the role of law in the health of patients from marginalized communities, referring them to partners for community health and legal services, and collaborating with multidisciplinary partners to address health-harming legal needs. However, “giving every community an equitable chance at being healthy means looking beyond medical care alone.” At the same time, physicians can serve as advocates for “population health” and use their experience serving individual patients to work towards broader health equity to address the social determinants and structural deficiencies that drive chronic illness and inequities in communities.

Health justice requires examination of the role of multiple disciplines in leveraging law and policy in the direction of health equity. This Article seeks to advance the conversation about both the fundamental legal needs that must be addressed to achieve health justice and the position of lawyers, who must play a critical role in the enforcement of extant laws and the development and pursuit of law reforms that implicate health justice. Ultimately, professionals across disciplines must go beyond their silos to contemplate collaborative approaches not only with each other, but with the individuals and communities whose inequities health justice seeks to redress at the center.


Associate Professor of Law, Georgetown University Law Center, J.D., Stanford Law School; B.A., University of Maryland.


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