By Angela P. Harris and Aysha Pamukcu
Law and Political Economy, June 4, 2020
“We’re all in this together” has become a familiar call for strengthening our sense of community and social responsibility during the COVID-19 pandemic. Although this phrase can obscure deep social inequities, this recognition of our interdependence presents an opportunity to connect economic justice and public health. COVID-19 has instilled a new public understanding that our collective health and safety is contingent on the fate of the most marginalized and least prosperous among us.
Author Anand Giridharadas has asked, “Take note today of the people who come within infecting distance of you. Are you confident they all have access to the care they need to be healthy—and keep you healthy?” We could easily expand that question: how confident are we that those around us have paid sick leave, decent working conditions, and housing where they can safely quarantine?
But even if the US strengthened its economic policies and successfully “flattened the curve” overall, we wouldn’t make a dent in the shocking disparities in mortality rates that are appearing in our daily news feeds. COVID-19 may endanger us all, but it is far more costly to some than others.
In a forthcoming article in the UCLA Law Review (see below), we — a critical race feminist and a health justice attorney — call for a campaign by public health advocates, civil rights lawyers, and frontline communities for “the civil rights of health.” We argue that policy should take a “targeted universalism” approach – working to address universal and particular needs at the same time by promoting policies that help everyone while providing the greatest benefit to the most marginalized. Although we wrote this article before the COVID-19 outbreak, we think its principles are fully applicable to our current plight.
Well-established literature on the social determinants of health shows us that individual choices determine our health outcomes far less than we think. The civil rights of health begin with a recognition that the cause of unjust health disparities is, quite simply, subordination. Based on the research, we identify three broad and interacting pathways through which subordination is written on the body: population, place, and power. COVID-19 has taken all three pathways in its spread across the US, resulting in unjust and racialized health outcomes.
Based on the incomplete data available across states, the national COVID-19 mortality rate for African Americans is 2.3 times higher than the rate for Asians and Latinxs, and 2.6 times higher than the rate for Whites.
These overall disparities were dwarfed by disparities in the nation’s “hot spots.”
These racial disparities in death rates are caused by — and amplified by — other social and economic inequities. Those who are homeless have no feasible options to “shelter in place.” People incarcerated in prisons and detention centers are prevented from practicing physical distancing safety measures. Low-wage workers are classified as essential and yet are not provided with appropriate protective equipment and paid sick leave. As the weeks pass, we are confronted with mounting examples of already-broken systems that now pose a deadly public safety threat.
We argue in our article that one way to forge an alliance among civil rights lawyers, marginalized communities, and public health advocates is to recognize that oppression is a health issue. Put simply, justice strengthens public health and injustice weakens it. Today, COVID-19 has clearly demonstrated that pandemics — and other disasters — thrive on inequality.
Not all government entities are rising to the occasion. We see actors in the federal government promoting unproven cures for the virus and using racially inflammatory language against Asian communities. Even the Centers for Disease Control and Prevention (CDC) chose to look the other way on some of the disparate effects of COVID-19, by initially only releasing location and age data regarding the pandemic while ignoring race.
In contrast, local communities across the country are stepping up.
We can build on these efforts by aligning public health data collection and interventions with a civil rights focus on eliminating oppression. We suggest that public health practitioners explicitly connect unjust health outcomes across population and place with subordination. Doing so will allow advocates to better address the root causes of poor health.
Today’s social movements are seizing the opportunity to change the underlying narratives that influence policy. For too long, health has been commonly understood to be a private good that people could enjoy by making the “right” decisions, like buying insurance, eating kale, or lifting weights. Today, with the help of public health, civil rights, and social justice advocates, economic justice is being reframed as a public good that benefits everyone’s health.
COVID-19 has demonstrated the dangers of treating the social determinants of health as private goods reserved for the fortunate few. We argue that it’s time to treat good jobs, affordable and adequate housing, clean air and water, and above all, anti-discrimination law and policy as health interventions that can both flatten the curve for everyone and close the unjust gap between the privileged and the subordinated.
Angela P. Harris is Professor Emerita at the UC Davis School of Law and the 2019-20 Visiting William H. Neukom Fellows Research Chair in Diversity and Law at the American Bar Foundation.
Aysha Pamukcu is the 2019-2020 Fulcrum Fellow at ChangeLab Solutions, where she was previously Health Equity Lead and Senior Attorney.
The Civil Rights of Health: A New Approach to Challenging Structural Inequality
By Angela P. Harris and Aysha Pamukcu
SSRN, UCLA Law Review, forthcoming, draft last revised Feb. 19, 2020
Abstract
An emerging literature on “the social determinants of health” reveals that a major driver of public health disparities is subordination. This body of research makes possible a powerful new alliance between public health and civil rights advocates: an initiative to promote the “civil rights of health.” Understanding health as a matter of justice and civil rights law as a health intervention has the potential to strengthen public health advocacy. At the same time, understanding social injustice as a health issue as well as a moral issue has the potential to reinvigorate civil rights advocacy. However, given the history of legal/public health initiatives that have reflected and even reinforced subordination, social movements are an essential advocacy partner and watchdog. This Article argues that a civil rights of health initiative built on a “health justice” framework can help educate policymakers and the public about the health effects of subordination, create new legal tools for challenging subordination, and ultimately reduce or eliminate unjust health disparities.
Conclusion
As a joint project of public health, social justice, and legal advocates, promoting the civil rights of health holds the potential to foster public and elite awareness of the systems of subordination that produce and perpetuate health disparities. We end with a word about partnerships.
Public health research demonstrates how even policies that seem far from the health arena have significant and often measurable health implications and impacts. Moreover, public health data is incredibly powerful and even predictive on a population basis — something which has yet to be effectively harnessed by the legal field, including civil rights advocates. Fully realizing the civil rights of health will require interdisciplinary and cross-sector collaboration to strategize and leverage collective resources. This work will require combined social, political and legal strategies, and much remains to be done.
One natural place to begin this collaboration is in our law schools. Within legal education, public health law is considered a “niche” subject; few faculty teach it and relatively few students are exposed to it. Properly understood, however, public health law is deeply integral to social justice, as the literature on the social determinants of health makes clear. Introducing the literature of the social determinants of health, not just to public health law faculty and students, but more broadly to students and faculty in a range of civil rights-related courses will help make clear the importance of health justice to the social justice mission. Courses that could incorporate information about the social determinants of health include poverty law, civil rights law, constitutional law, critical race theory, gender, sexuality and the law, environmental law, and international human rights law, as well as practice-related courses like legislative advocacy, public interest practice, and policy advocacy.
Finally, we note that alliances among social justice advocates and civil rights advocates have made surprising recent gains in a time of retrenchment and pessimism. Campaigns such as “Ban the Box” and the “fight for $15” have succeeded in moving the needle on mass incarceration and economic justice. The “Me Too” and “Time’s Up” initiatives have similarly reinvigorated the battle against sexual violence, harassment, and exploitation. LGBT advocates have established same-sex marriage as the law of the land and called attention to the distinctive subordination of trans and gender-nonconforming people, despite legal setbacks. Health justice builds on the work of [x] justice movements that have come before, and carries the potential to unite them in an overall concern for human flourishing.
The geographer Ruth Gilmore famously defined racism as “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” It is perhaps fitting, and unsurprising, that justice makes us healthy and injustice makes us ill. With this recognition bolstered by science as well as law, we are at an important beginning of new scholarship and practice. We hope this Article will be read not as a summation, but a call to action.
Comment:
By Don McCanne, M.D.
We have read much about the social determinants of health and the social and economic inequities that lead to unjust health disparities. As these authors state, “justice makes us healthy and injustice makes us ill.”
At PNHP, we have long advocated for a health care financing system that will make health care accessible and affordable for everyone – the single payer model of Medicare for All. But there is so much more involved in the health of the public even before the need to access the health care delivery system. In their paper, “The Civil Rights of Health: A New Approach to Challenging Structural Inequality,” Angela Harris and Aysha Pamukcu propose that we situate “the civil rights of health” within the emergent “health justice movement,” a framework that places the empowerment of vulnerable populations at the center of action.
Quoting the authors, “A health justice approach to the civil rights of health allows for many possible alliances between legal power, scientific power, and people power. Some partnerships may be preventive in nature, such as participatory budgeting and community-based comprehensive planning; others will be necessarily reactive, such as collaborations among public health and immigrant justice advocates to provide flu shots to detained migrants at the U.S.-Mexico border. The ultimate goal, however, is what the public health world calls ‘health equity’ – a world in which your wealth, your social status, your access to power, and your zip code are irrelevant to your life expectancy or vulnerability to illness.”
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