Health law is complicated, unruly, and maybe even incoherent. It lacks a simple universally understood narrative of what, exactly, it is. On top of this complicated foundation, legal and policy reforms have taken effect over recent years with dizzying speed, only to be challenged, carved back, or reversed in later years. Annually, it seems that the whole field of health law hinges on some major case or dramatic legislative effort. The previous year’s class syllabus is never reusable. And it has even humbled our president, as he recently told us what we all already knew: it is unbelievably complex. Seemingly in vain, health law scholars and legal academics search for a unifying theme. But maybe this so-called bug is truly a feature, and its disjointedness may present us with many open lines of scholarly inquiry, giving us all lots of room to run.
That’s why articles that are able to tell a story about the development of health law and about reasoned cause-and-effect of legal and policy development, are so helpful to the field and those of us who work within it. Drawing on historical analysis, interacting with a breadth of previous scholars’ work, and pulling together a simple but edifying story about the development of health law is The Dynamism of Health Law: Expanded Insurance Coverage As the Engine of Regulatory Reform, by Gabriel Scheffler.
Instead of telling of doctrinal development within a field that is haphazard and disconnected, Professor Scheffler argues that modern health law can best be understood through health care financing laws (that expand access) and health care delivery laws (that reform health care delivery). These two types of laws, according to Scheffler, are in a dynamic iterative process, where expansions in coverage lead to reforms in delivery. Scheffler focuses on the creation of the Medicare and Medicaid programs and the passage of the Affordable Care Act as his seminal “expansion” moves. He identifies scope of practice restrictions, the corporate practice of medicine doctrine, and certificate of need laws as key delivery reforms following those efforts, supporting the argument that government intervention to expand health care access reliably leads to a concomitant effort to make health care delivery work better.
Telling this cause-and-effect story allows him to make the argument that future expansions of health insurance may lead to increased pressure on legislators to make delivery more efficient, and that expanding health insurance coverage is often a positive catalyst for regulatory improvements. Scheffler says that this may be because during insurance access expansions, policymakers have been concerned about securing those finance gains as real access gains in doctors’ offices and hospitals, with a specific worry that new demand will swamp the system and lead to quality retrenchment. It could also be that health insurance expansions are often publicly visible, he argues, putting more pressure on legislators to change outmoded delivery mechanisms. In this way, he presents a picture that health care regulation adapts in a reasonable, and perhaps even somewhat orderly, way.
Professor Scheffler’s work builds on Kenneth Arrow’s feedback loop, in which Arrow argues that non-market governmental and regulatory actions follow market failures and information asymmetries in health care. “The market’s failure to provide health insurance to the public has necessitated government-provided health insurance, which has increased the demand for health care, which in turn has created pressure for the government to change delivery system regulations,” Scheffler says. Consequently, governmental involvement and delivery regulation in health care operates as a sort of creeping force, acquiring more legitimacy and necessity as more Americans secure access to health care.
Scheffler’s argument is clear and straightforward, providing a compelling thesis in a foggy time. His work is helpful, much in the way a narrative accounting of the development of the field can be, even at the risk of sanding down some important rough edges. Because I appreciated the precision of his analysis, I would have enjoyed hearing how more recent health care delivery and regulatory changes like physician reimbursement changes, insurance regulations, and dramatic recently enacted surprise billing regulation would fit into his telling. Including more examples, however, may have risked losing the piece’s crisp and straightforward packaging.
In the end, the piece is an ode to health law and its rich history, tying together strands and scholarship from vast reaches of the field. And, although the piece’s thrust may leave the implication that delivery reform must wait for financing reform (which, as we know, is a rare and sacred thing within American law), it provides something that a new and scattered field like health law too often lacks: a clear story, a deep grounding, and a hopeful roadmap for future reform efforts.
Gun violence in the United States has become a public health crisis, with an average of 100 Americans killed by firearms every day. If any other product caused this many deaths, it would almost certainly be subject to extensive regulation. However, efforts to regulate firearms are often stymied by claims that they violate individuals’ Second Amendment rights. In A Public Health Law Path for Second Amendment Jurisprudence, Michael Ulrich explains why this absolutist interpretation of the Second Amendment is inconsistent with longstanding constitutional principles. In so doing, he demonstrates that it is possible to respect the Second Amendment as an important constitutional value without stripping governments of the authority to regulate firearms in the interest of public health.
Ulrich begins with an overview of the Supreme Court’s two primary Second Amendment cases, District of Columbia v. Heller and McDonald v. City of Chicago. He concludes that those cases definitively resolved only three specific issues: First, that the Second Amendment protects an individual’s right to keep and bear arms; second, that the right is not unlimited; and third, that the right does not extend to “dangerous and unusual weapons.” Beyond those general conclusions, the decisions provide little clarity as to how courts should analyze regulations that implicate Second Amendment rights.
Justice Scalia’s opinion in Heller – and, to an even greater extent, now-Justice Kavanaugh’s dissent in the D.C. Circuit opinion in Heller v. District of Columbia (“Heller II”) – suggest that the scope of Second Amendment rights should be determined by historical investigation. While Ulrich rightly disputes the clarity of the historical record on gun laws, he recognizes that a persuasive case for gun regulation must take the role of history seriously. However, he challenges the assumption that history is relevant only to identifying the type of conduct protected by the Second Amendment. Instead, he argues that a historical analysis should also guide judgments about the circumstances in which states can enact laws limiting Second Amendment rights.
In particular, Ulrich emphasizes that a historically grounded interpretation of the scope of Second Amendment protection must recognize the longstanding judicial acceptance of laws that limit individual rights in pursuit of public health and safety. In Jacobson v. Massachusetts, for example, “the Court treats the notion of infringing on individuals for the public good as well-settled in common law and constitutional analysis.” (P. 1078.) In light of this fact, a historical approach to the Second Amendment does not mean that any infringements on the right to keep and bear arms are necessarily unconstitutional.
Ulrich provides numerous examples of situations in which courts have accepted limitations on fundamental rights for public health and safety purposes. His strongest example is the quarantine power: “The right to move freely is perhaps the most important liberty interest, and yet, the authority to quarantine has been upheld by courts since the founding due to the recognition that the police power authorizes the state to take preventive measures to reduce the risk of harm.” (P. 1083.) If freedom of movement, as well as other fundamental rights, can be limited for public health and safety, “infringing on Second Amendment rights for public health and safety places it on the same level of protection as any other constitutionally protected right.” (P. 1084.)
Ulrich further shows that states’ authority to restrict fundamental rights for public health purposes is not limited to crisis situations. For example, in Zucht v. King, the Supreme Court upheld a law requiring children to be vaccinated for smallpox even in the absence of evidence that smallpox existed in the area. Zucht and other cases support states’ authority to take preventive actions to prevent public health harms before those harms have occurred.
After establishing that states’ public health powers can justify limitations on individual rights, even those that are characterized as fundamental, Ulrich next explains why efforts to reduce gun violence fall within states’ public health authority. He explains that gun violence is not simply a question of individual bad actors engaging in criminal activity, but a “far-reaching public health problem” that “can be alleviated through preventive legal measures.” (Pp. 1085-86.) Like other public health problems, he argues, gun violence has a broad impact on a variety of population health measures, with a disproportionate share of those burdens experienced by members of vulnerable groups. Moreover, the mechanisms by which gun violence operates share many characteristics with other public health threats. For example, like contagious diseases, gun violence spreads through social networks and becomes concentrated in particular populations. Finally, “there is growing evidence that the law can have a significant impact on subduing or increasing gun violence,” which “suggests government action may be warranted and constitutional in certain circumstances depending on the specifics of the regulation.” (P. 1092.)
Ulrich argues that the devastation of gun violence “likely enables a wide range of firearm regulations.” (P. 1096.) Even if the probability that a gun will cause harm is low in any individual situation, the magnitude of the potential harm is substantial. Moreover, the probability of harm increases when it is aggregated across the population. Because the magnitude and probability of harm make the states’ interest in controlling gun violence compelling, “even the application of strict scrutiny does not cripple the ability of the state to act under its police power authority.” (P. 1096.)
In order to determine whether any particular intervention is constitutionally permissible, Ulrich argues, courts must consider not only the extent to which it burdens individual’s Second Amendment liberties but also the potential public health benefits. For example, in evaluating a restriction on carrying firearms in public, “a public health law evaluation would balance the need for self-defense against the risks generated to the public by large numbers of people regularly carrying firearms in public. It may also include an inquiry into what, if anything, data suggests about the success rate of self-defense to determine whether this claim properly override the increased risk to the public.” (P. 1098.)
Ulrich’s analysis provides a persuasive rebuttal to Second Amendment absolutists. It shows that a historically grounded approach to the Second Amendment does not require striking down firearms regulations solely because they did not exist at the time the Second Amendment was ratified. The article is well worth reading by anyone concerned that the Court’s emerging Second Amendment jurisprudence leaves insufficient room for public health.
Medha D. Makhlouf, Laboratories of Exclusion: Medicaid, Federalism & Immigrants
, 95 N.Y.U. L. Rev.
__ (2020), available at SSRN
The allocation of public health authority in the United States across more than 2,000 federal, state and local government departments has produced a decentralized, disjointed response to the novel coronavirus disease 2019 (COVID-19). The COVID-19 pandemic also lays bare the vast inequalities in health based on race, ethnicity, and income, and how limited access to health care for some can adversely impact the many. This has brought increased attention to our federalist form of government and the merits of dividing power in the health care arena between a national government and states. Broader health care reform debates about the Affordable Care Act, a public health insurance option, and single payor raise similar questions about federalism’s role in health policy.
Medha Makhlouf’s forthcoming article, Laboratories of Exclusion: Medicaid, Federalism & Immigrants, adds an important and timely contribution to this discussion by providing an in-depth study of federalism’s role in shaping state policies on immigrant eligibility for Medicaid. The article shows how Medicaid’s cooperative federalism structure has not only failed to produce one of the cited benefits of federalism ─ better policy outcomes from state experimentation and innovation ─ but has encouraged the opposite ─ policies that favor the exclusion of immigrants from Medicaid and weaken national health policy goals. Moreover, the article shows how federalism can frustrate national policies that seek greater health equity and even exacerbate existing health inequalities.
The Article begins with a history of immigrant eligibility for Medicaid and explains its evolution to a federal framework that gives states considerable discretion to create policies on noncitizen eligibility for Medicaid. It then documents states’ wide-ranging responses under this framework. The availability of federal matching funds has enticed most states to expand coverage to lawfully present noncitizens with long-term residence (at least 5 years) and who therefore have secure pathways to citizenship. The picture is more mixed with respect to state responses to federal matching funds for other noncitizens. Some states have used available federal funds to expand Medicaid eligibility to some noncitizens, suggesting that federal funding can nudge states toward more expansive policies. Yet ideology and fiscal constraints have caused many states to forego using federal matching funds to expand coverage to other noncitizens, including children and pregnant women. Moreover, perhaps not surprisingly, very few states have elected to use state-only funds to expand coverage to undocumented immigrants, and those that have done so often adopt narrow eligibility criteria and coverage limits due to limited state budgets.
In Part II, Professor Makhlouf highlights the problems of an existing patchwork of state policies on immigrant eligibility for Medicaid that favor exclusion. After explaining how these policies reinforce health disparities among citizens and noncitizens, she discusses the public health risks and inefficiencies these policies produce. The rapid spread of COVID-19 presents an all too timely example of the spillover effects of denying noncitizens access to health care, but Professor Maklouf also notes the potential for higher rates of property and violent crimes when noncitizens’ behavioral health needs go unmet, the strain on U.S. citizens with noncitizen family members in poor health, and lower productivity among noncitizens in the workforce. In addition, states’ exclusionary Medicaid policies create inefficiencies in health care financing, as noncitizens’ poorer health from delayed and foregone care leads to unpaid emergency room and hospital care, increased Medicaid emergency funding, higher Medicaid and Medicare disproportionate hospital (DSH) payments, and cost-shifting. The Article also argues that these state policies frustrate health equity goals and illustrates the link between growing racial and ethnic diversity among noncitizens and the decreasing generosity of state social policies.
Parts III and IV situate the Article’s case study in the larger literature on federalism, and in particular legal commentators’ arguments over the strength and weaknesses of federalism in the health policy arena. Professor Makhlouf shows that rather than enable better policy outcomes through laboratories of democracy, the federalism framework for noncitizen Medicaid eligibility has produced a race to the bottom. This results in part from racial and ethnic dynamics operating at the state level that lead to exclusionary policies and greater health inequities. Fiscal constraints also prevent states from embracing federal options, either because of poor baseline economic conditions or concerns that a future downturn would make it difficult to continue state support for expansive Medicaid policies. Moreover, as the Article explains, various structural features of federalism reinforce these challenges. First, federal law requires affirmative legislative action at the state level that authorizes the expansion of Medicaid to certain groups of noncitizens. Second, siloed state-level advocacy makes it harder for organizations to advance greater health equity across states. These are important lessons for those calling for heath reforms that promote universal access and reduce health disparities.
Like other regions in the world, Europe is being confronted with major demographic changes through decreasing birth rates and an ageing population. Although one cannot deny the advantages of the increased life expectancy, the elderly are struggling with stereotypes and facing discrimination based on age. For instance, elderly people use healthcare services disproportionally compared to younger generations, and an ageing population will further increase healthcare costs. Also, in times of public health emergencies like the Covid-19 pandemic, there is an ongoing discussion on whether the elderly should be deprioritised for admission at intensive care units due to scarcity of ventilators.
Facing such challenges, Ageing, Ageism and the Law includes the outcomes of a research project on the consequences of ageism and the role of law (enacting, enforcing and changing laws) in fighting ageism in contemporary societies.
This book is in two parts. Part one covers theories and concepts, explaining the core notions of equality and older people, ageing, vulnerability and ageism and how they can be related to law. The leading concept here is ageism. Although there are several definitions of ageism, here the authors describe ageism as: ‘negative or positive stereotypes, prejudice and/or discrimination against (or to the advantage of) elderly people on the basis of their chronological age or on the basis of a perception of them as being “old” or elderly. Ageism can be implicit or explicit and can be expressed on a micro-, meso-, or macro-level’ (P. 4.) Based on this definition, the authors start a journey to ‘explain the reasons and foundations for ageism’.
Part two addresses the legal experiences to protect the rights of elderly and the manifestations of ageism, from a European–both European Union and Council of Europe level–and international human rights perspective. EU law places age in anti-discrimination clauses both in primary law (Treaty and Charter) and secondary law (directives), although the focus is on labour relations. A more ‘horizontal’ directive, implementing the principle of equal treatment in other parts of sectors in society, has been proposed by the European Council. In addition, a range of other measures and strategies have been adopted to “combat social exclusion and discrimination” and “promote … solidarity between generations …” (Article 3(3) EU Treaty). Thus, at EU level the notion of solidarity encompasses the value of intergenerational solidarity to mutually support generations, including the elderly, by various social protection and social inclusion policies (P. 78.)
The Council of Europe operates in a different manner, fighting all forms of prohibited discrimination, including age-based discrimination and stereotyping, as covered by the European Convention on Human Rights (Article 14) and protected by the European Human Rights Court. Article 14 violations must be read together with other rights under the Convention, such as the right to respect for family and private life. An illustrative case is that of Carvalho Pinto de Sousa v. Portugal, claiming compensation in a medical malpractice case where the plaintiff’s primary injury was a loss of sensation in the vagina area. At a national level, the Portuguese Supreme Court reduced the amount of compensation for non-pecuniary damages since the plaintiff was already 50 years old and had two children, that is, ‘an age when sex is not as important as in younger years, its significance diminishing with age’. It is no surprise that the European Human Rights Court did not accept such a reasoning, based on age and gender discrimination, particularly since the national court upheld similar compensation claims of two male victims in their fifties in which the medical operation left them impotent and incontinent. In its ruling, the European Court criticised the Portuguese judiciary (all men at that time) for its sexist prejudice.
Different from the Convention, the European Social Charter (ESC) includes a specific provision protecting the rights of the elderly to social protection (Article 23), obliging state parties ‘to take measures to enable elderly persons to remain full members of society and live independently, by means of … the health care and the services necessitated by their state’. Article 23 overlaps with other social rights covered by the charter (work, education, occupation, health, social security and welfare), whereas the European Committee on Social Rights consistently held that the rights embodied in the two treaties (the Convention and the Charter) are inextricably linked, since human dignity is the core value of European human rights law. At the same time, the Committee confirmed in International Federation of Human Rights Leagues (FIDH) v. France that ‘health care is a prerequisite for the preservation of human dignity’. Examining the Committee’s Article 23 decisions and conclusions, it shows that ‘the conclusions regarding the rights of the elderly are increasing, and certain patterns can be seen, i.e. only a minority of conclusions authorise the state’s conformity with the requirement of the Charter’ (Pp. 152-3.) More specifically, the Committee emphasises the need for healthcare programmes and services (in particular primary healthcare services) specifically addressed for elderly people, and adequate palliative care services. But so far the Committee has made no explicit references to ageism, although the ESC provides a strong and powerful tool to develop the social rights of the elderly (P. 171.)
In the concluding chapter, the authors call for a more global approach to human rights violations faced by older people, as ageism is not unique to Europe. So far, ageism has only been marginally addressed by international human rights law. Prior to a new international binding treaty that focuses on older people, the authors emphasise the need for a substantive discussion on the implications of ageism on the content of such a new convention in that regard. A mere prohibition of age discrimination alongside the confirmation of other human rights will not be sufficient to tackle systemic and structural ageism (P. 189.)
Although there are strong arguments for such a new convention, at a European level the ‘elderly rights provision’ in combination with other social rights has the potential to fight ageism in various settings. What is important is that the Committee will be triggered to assess potentially discriminatory actions by state parties. A likely test case could be the Dutch Covid-19 critical care triage guideline that has age cut-offs that deprioritise or exclude the elderly. Since the Committee will focus its 2021 examination of state reports on the right to protection of health–specifically on the immediate response to the current Covid-19 pandemic–the arguably discriminatory triage guideline will be reviewed by the Committee.
To conclude, Ageing, Ageism and the Law addresses and examines a highly relevant issue in contemporary health care systems, which became even more prominent during the Covid-19 pandemic.
Workplace wellness programs have received significant attention in the legal literature. These programs are premised on the idea that, rather than simply covering the cost of medical care, health plans should encourage enrollees to take affirmative steps to improve their health so that less medical care is needed. Such encouragement generally takes the form of financial incentives that are provided either for taking certain actions (like filling out a health risk assessment or undergoing a biometric health screening) or for achieving specific health outcomes (such as quitting tobacco or lowering cholesterol). An explicit motivation for such plans is that they can be a piece of the cost-containment puzzle, all while encouraging an otherwise laudable goal–improved health and less sickness. Yet these programs have been strongly criticized for potentially shifting health plan costs onto those least able to afford them. Many suspect that these programs do little more than reward those already engaged in health-enhancing behaviors and may in fact shift costs onto individuals who are sick, disabled, or low-income.
To date, most empirical studies of wellness programs have been observational–simply measuring differences in outcomes between those who voluntarily choose to participate in programs and those who do not, while attempting to control for various differences between groups. But such studies are of limited use in trying to establish whether it is wellness program participation that drives such outcomes. After all, it is highly plausible that only health-motivated individuals who have the capacity to participate in a wellness program opt to do so. In What do Workplace Wellness Programs do? Jones et al. present the results of the first-ever comprehensive randomized controlled trial of a workplace wellness program. Their findings suggest that wellness programs neither lower medical costs nor improve health outcomes or worker productivity. Instead, the study suggests that wellness programs may save an employer money by helping to recruit and retain healthier workers.
The results presented in What do Workplace Wellness Programs do? are the first in a series to be published based on a randomized controlled trial that took place at the University of Illinois, where approximately 4,800 employees were randomly assigned to either the treatment group that was offered participation in a workplace wellness program, or a controlled group that was not allowed to participate. Those in the treatment group were assigned to various incentive design structures to test how differing financial incentives affected participation. A wide range of data were included in the study, including online surveys, university employment records, health insurance claims, campus gym records, and even participation records from a large community running event.
In this first article, the researchers address three key questions. The first is how financial incentives affect the level of participation in wellness programs. This factor was studied using differential financial incentives within the treatment group. The results show that increasing the financial incentive for participating in a health screening from zero to $100 raised participation significantly. Further increasing the incentive to $200 also increased participation, but at a much lower rate. In other words, financial incentives have a significant but diminishing effect on health screening participation.
The study also examined what types of employees select into wellness programs, and the findings confirm what many wellness program skeptics assumed. The study found significant advantageous selection into the wellness program. Individuals assigned to the treatment group who chose to participate in the wellness program had, in the year prior to enrolling in the wellness program, almost $1,400 less in medical spending, were more likely to have visited the campus gym, and more likely to have participated in the large community running event.
Finally, and in my view most significantly, the study evaluated the causal effects of workplace wellness programs on medical spending, employee productivity, health behaviors, and wellbeing after one year. This research question really gets to the heart of wellness programs. Do they do what they claim to do? Yet again, the results here are damning. The study found no statistically significant effects for 37 of the 39 outcomes measured, which addressed various aspects of medical spending, employee productivity, health behaviors, and self-reported health. The two significant treatment effects were both based on follow-up survey results. The first was that employees in the treatment group were more likely to report that they had ever received a health screening, while the second was that the treatment group was more likely to report that management places a high priority on worker health and safety.
While this study examined effects at one employer after only a single year of wellness program participation, I nevertheless believe its findings are hugely important. Most large employers offer a wellness program and do so at a significant cost. Yet the results of this study suggest that relatively healthy and high income employees participate in such programs at a higher rate than relatively sick or low income employees, and that among such voluntary participants, the only significant outcomes are increased participation in health screening and a greater belief that the employer cares about worker health and safety. If these findings are generalizable, why would employers continue to offer such programs? The study authors posit one possible rationale for so doing: to recruit and retain a healthier employee population. A wellness program can be profit-maximizing even in the absence of any direct effects on health, productivity, or medical spending if the employer can shift even a relatively small percentage of its employee population to this healthier, wellness plan-valuing group that comes in with average medical expenses almost $1,400 less than employees who do not participate in such plans. The implications here are weighty, and present a rich area for further study.
- Samuel R. Bagenstos, May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities? Notes on the Law and Ethics of Disability-Based Medical Rationing, 130 Yale L. J. Forum __ (forthcoming, 2020), available at SSRN.
- Deborah Hellman & Kate Nicholson, Rationing and Disability in a State of Crisis (Apr. 16, 2020), available at SSRN.
With the COVID-19 pandemic wreaking havoc in health care systems around the world, many jurisdictions have recently drafted or dusted off old clinical care triage protocols to facilitate decision-making when surges in infection rates overwhelm hospitals’ Intensive Care Units (ICUs). Not surprisingly, most of these policies reflect a utilitarian approach. Law and ethics policies generally endorse the notion that a pandemic or other large-scale threat to society requires efficient action by governments, which may involve a curtailing of individual rights. A growing chorus of academic commentators and human rights organizations have voiced concern that the focus on ‘saving the most lives’ embedded in triage policies, and particularly how these policies hope to achieve this, clashes with discrimination law, and particularly the rights of people with disabilities. Of a near-tsunami of blogs, op-eds, and commentaries in the legal, bioethics, and medical literature, forthcoming law articles by Samuel R. Bagenstos, and Deborah Hellman and Kate Nicholson stand out for how they discuss what the demands of equity imposed by discrimination law require, and how they each give us some idea of what accommodation in clinical triage protocol policies could look like.
Triage protocols are intended to solve the clash of commitments among physicians, when they are no longer able to give all patients the care they would normally feel duty-bound to provide. They introduce selection criteria for access to care (particularly ventilators, which I will focus on later), explicitly based on concepts of utility, fairness, proportionality, and reciprocity; and also decision-making procedures built around triage committees. Triage protocols deal with life and death decisions, or a least with who will receive an albeit limited chance of survival, since survival rates of those put on a ventilator for COVID19 appear troublingly low. The disability community has raised particular concerns about those protocols that mention specific disabilities as disqualifying conditions. These concerns flow from a historical experience with deprioritization and broad problems of equitable access to health care; concerns that have been heightened by the disproportionate impact of the pandemic. But even protocols claiming to be purely based on clinical prognoses and prediction of mortality have come under scrutiny because of their disproportionate impact on people with disabilities and other disadvantaged groups.
One of the key questions addressed in the emerging literature is whether, and to what extent, system and public interest-focused triage planning can be reconciled with the equal rights of people with disabilities. Most prominent has been a debate for the Yale Law Journal Forum between Samuel R. Bagenstos and Govind Persad. Both agree on some points: they reject quality of life assessments for triaging, and are concerned about biases and unsupported assumptions about people with disablities. But Persad supports broad triaging and accepts that some people with disabilties should be deprioritized based on ‘evidence-based’ assessments of likelihood of benefit. He argues that triage policies are the most efficient way to save more people, including more people with disabilities, as well as more overall “life years”; and that disability advocates should instead focus on reducing the scarcity of ventilators. Bagenstos supports only a limited form of triaging, namely exclusion of people who are unlikely to survive treatment, with other selection criteria such as random selection to prioritize all others.
Bagenstos’ discussion focuses on why the use of disabilities as a category for exclusion constitutes discrimination based on disability under the Americans with Disabilities Act and the Affordable Care Act. He starts with an analysis of the key legal requirements for a finding of discrimination: in order to be protected under the law, a person must fulfill the essential eligibility criteria for life-saving ventilation support (i.e. must be ‘qualified’ for this form of medical care). Bagenstos highlights the danger of deeming a “comparative ability to benefit” to be a proper qualification standard in triage policies if it excludes people with disabilities from accessing ventilators [based on calculations that their lives are ‘worth less’].
In this discussion, he points out how the restrictions imposed by disability law help counter the well-documented influence, in the provision of health care, of ‘outside’ (read ‘ableist’) views of the quality of life of people with disabilities. For Bagenstos, objective, well-documented medical evidence that a person with a disability will not benefit at all from receiving ventilator support can be the basis for a legally valid disqualification. He warns, however, that we should remain vigilant even when exclusions are based on medical facts, because distorted estimates of survival chances may insert bias into these ‘objective’ assessments. He therefore not only calls for a categorical rejection of specific disabilities as a sufficient basis for exclusion, but also pushes for procedural safeguards that protect against biased assessments. As a component of the duty to accommodate under discrimination law, he also suggests that “medical systems [should] take steps to ensure that those who are not qualified for life-saving treatments can become qualified.” Of further interest, Bagenstos situates the legitimacy of triage exclusions in the context of the broader goal of discrimination law: compensation for the challenges caused by underrepresentation of people with disabilities among health professionals who control the decision-making process, and for the barriers they face for full participation in democratic processes that shape our health care system.
In a paper focusing on policies that appear neutral (i.e: without any explicit disability-based exclusions), Deborah Hellman and Kate Nicholson go even further than Bagenstos. In Rationing and Disability in a State of Crisis, they conclude, albeit “cautiously,” that any policy that results in excluding people with disabilities from accessing life-saving care fails to satisfy the equity requirement embedded in anti-discrimination law. Like Bagenstos, they rightly situate the debate in the context of the broad purpose of anti-discrimination law, namely rectifying the structural inequities that are built into our society, including in the health care system. The paper stands out for its detailed comparison of the degree of incompatibility between four common rationing principles and the demands of equity that undergrid anti-discrimination law.
Hellman and Nicholson’s discussion of the historical use of ‘quality of life’ is interesting, but less important in this context. Few (if any) current pandemic triage policies put forward post-ventilation quality of life as a criterion for access, and rightly so, since the use of stereotypical ableist quality of life presumptions clearly runs counter to the core goal of anti-discrimination law. The three other key principles they consider (efficiency, probability of success, and life expectancy) are of greater relevance in the present context.
With respect to using life expectancy as a triage criterion, they acknowledge that there are ethical arguments in support of favoring young people over old (providing an opportunity for a full life; and giving the young a fair share of resources). But they rightly point out that policies allowing calculations based on life expectancy (so those that do not just favor young over old) will have a particular and disparate impact on people with disabilities, many of who have shorter life expectancy. A life-expectancy criterion is thus inherently suspect under anti-discrimination law.
Further to this, the authors argue that even efficiency and probability of success, the criteria with the most neutral associations to the core purpose of triaging (saving the most lives), are in tension with discrimination law. Of the two, probability of success of ventilation treatment in individual patients, which is expressed in percentages of survival chances, is most problematic for them because it involves a comparison of two persons who need to be treated as equals. Under anti-discrimination law, treating them as equals requires ensuring a disabled person (who, for example, might only have a 30% chance of survival, compared to another person with a 50% chance) an equal chance of access to a service that may save their life.
For Hellman and Nicholson, triaging based on efficiency is morally preferable because it does not amount to explicitly weighing the life of one person in need of care against another’s. For instance, efficiency aims to provide ventilator support to more people, by favoring those who are more likely to benefit quickly. Although both ultimately save more lives and are somewhat similar in outcome (and in my view overlap significantly—I still have difficulty disentangling the two in some practical examples, and I think they will most often be jointly used), efficiency is based on statistical numbers: how many will benefit, not which of the two people before us will most likely benefit. It thus constitutes a less direct disadvantage for people with disabilities. However, Hellman and Nicholson conclude that even efficiency-focused protocols risk running counter to the duty to accommodate that is embedded in discrimination law, for instance when they fail to take into consideration that people with a disability may require more time on a ventilator than a neutral efficiency-based time limit would allow.
Both the Hellman and Nicholson and Bagenstos papers recognize that discrimination law leaves room for some level of efficiency and practicality, though they seem to slightly disagree on how to balance these with the duty to accommodate. Both also discuss anti-discrimination law’s discomfort with broad categorizations, and its emphasis on the need for individualized assessments, which are needed to allow individuals to escape the statistics that would otherwise categorically exclude them from access to care. One particularly compelling aspect of their analysis lies in their emphasis that the approach of ‘saving more lives,’ embedded in triage policies, is fundamentally in tension with the ameliorative purpose of discrimination law. This is an implicit rebuttal to those who suggest that since more people with disabilities will benefit from efficient triage policies than be harmed, triaging focused on saving most lives is fundamentally compatible with anti-discrimination law. Indeed, the concept of equity embedded in discrimination law requires us to look beyond a mere utilitarian calculation of degree of benefit and numbers of people benefiting. They impose a duty to consider how to compensate for structural inequities in the first place.
But how far we can and should go with accommodation in relation to access to ventilators remains to be further explored. Are there other ways than the example Hellman and Nicholson give of permitting a person with disabilities more time on a ventilator if that will provide the person a fair chance of survival? When does accommodation become so unpractical that it really undermines the ability of the health care system to reasonably cope with a shortage? For instance, a recent paper in the medical literature makes an interesting suggestion to compensate for the broader background inequity in health care by “weighing triage scores with an area deprivation index that accounts for social determinants of health.” That would accommodate many people living in communities (particularly in large urban centers) that have been disproportionately affected by the pandemic, and seems to align with the demand for equity. Could there be a similar scale that accounts for the broader inequities that many people with disability face? Such a score could be part of an ameliorative scheme for people with disabilities that may compensate for the lower priority score on triage policies that they would otherwise receive. But do these suggestions not risk becoming so unpractical that they exceed what accommodation can require? Will they even be concretely implemented? In conversations I had with emergency physicians on the topic of pandemic triage protocols, the message was that if protocols become too complicated, physicians will find a way around them, particularly when the rubber hits the road. The authors of the papers discussed here appropriately emphasize that we have to accommodate people with disabilities, even within a context of pandemic triaging. But more work can and needs to be done in thinking about the concrete implementation of accommodation measures.
The papers discussed here will undoubtedly inspire those with a particular interest in disability rights and pandemic health care policies. But they should also be of interest to all those thinking about the relation between individual health rights and broader health systems planning.
Trudo Lemmens, Addressing the Tension between Discrimination Law and Pandemic Clinical Triage Protocols
, JOTWELL (July 8, 2020) (reviewing Samuel R. Bagenstos, May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities? Notes on the Law and Ethics of Disability-Based Medical Rationing
, 130 Yale L. J. Forum
__ (2020); Deborah Hellman & Kate Nicholson, Rationing and Disability in a State of Crisis
, available at SSRN
Govind Persad, Expensive Patients, Reinsurance and the Future of Health Reform
, 69 Emory L.J.
__ (forthcoming, 2020), available on SSRN
We are in the midst of a health reinsurance “moment” right now. The idea of reinsurance, and in particular, government-sponsored reinsurance, rises to the fore in cycles, and our current rash of state-based reinsurance proposals signals that we’re in the ascendant phase. Reinsurance is at once a clever technocratic device but also a powerful conceptual frame. In the health context, government-sponsored reinsurance can take the form of a policy where the reinsurer, in this case the government, assumes the obligation to pay claims incurred by a given beneficiary once those claims exceed an annual attachment point. CMS has, for example, built in a de facto reinsurance policy for ACA plans, kicking in 60% of medical costs for any ACA plan enrollee who has incurred over a million dollars in claims. As you can see from this example, the primary insurers with this reinsurance protection are partially shielded from the risks of large catastrophic claims requiring excessive capitalization.
But government reinsurance also represents the distinctive structure of public-private power in our era. How is risk backstopped today, and under what conditions? When does an outcome count as catastrophic such that our existing risk management institutions cannot be expected to absorb it or hold reserves to meet it? Who gets a bail-out, and who must take the consequences of their bad bets? The question of who enjoys government reinsurance is a lens that helps us penetrate many of the mysteries of our current political situation.
Part of my engagement with the reinsurance moment is the pleasure I take in discovering interesting writing, past and present, on the subject of reinsurance. A new and enjoyable entrant in this category is Govind Persad’s new article, Expensive Patients, Reinsurance, and the Future of Health Care Reform, forthcoming in Emory Law Journal.
Persad’s article starts with what I think of as his signature concern, that of expensive medical care that threatens to burst the limits of our health care resources. He then threads his way through to reinsurance as the corresponding tool for both mustering funds for this expensive care while spreading costs in such a way as to keep us within the resource horizon.
What to do about those expenses is, Persad rightly argues, a normative question, rather than a matter of expedient technical design. Others have analyzed the technical virtues of reinsurance. Persad provides a tripartite framework for the normative analysis. He identifies three interlinked considerations for fairly addressing the costs of expensive patients: 1) the breadth of cost-spreading, across a larger or smaller risk pool 2) the bounded scope of the treatment whose costs are shared in this way, and 3) progressivity of the incidence of those shared costs. Persad contends that broad sharing is justified to counteract brute bad luck, but the scope of what is shared must be closely bounded under Dworkin’s “hypothetical prudent insurance” ideal to avoid unfair economic burdens especially upon those who suffer the brute bad luck of poverty. But he then observes that if the economic load of expensive care in this highly inequitable world could be arranged progressively, strict boundedness can be somewhat relaxed, since the wealthier can be justly asked to absorb much of the burden.
And a policy of progressively financed, government-sponsored reinsurance to backstop our various fragmented insurance pools is precisely the device that can achieve these three conditions at once: breadth of sharing and progressivity of economic contribution, thereby allowing a looser boundedness that frees us from painful decisions about withholding expensive care.
There is much I agree with and much I disagree with throughout the piece, which itself is teeming with fact and argument. Indeed, the density of ideas is what I most enjoyed about the piece—and reading it was like running my own thinking through a clarifying sieve.
Here are some things I agree with. Plaudits to Persad for pushing back on the tendency of reinsurance proponents to dismiss, or even invisibilize the burdens and trade-offs. Reinsurance lends itself to this kind of avoidance. It can seem like the proverbial free lunch where everyone eats and no one pays. Hence the focus on its technical virtues: reinsurance certainly benefits the high-cost patients to whom it is targeted, but it also makes insurance more affordable for low-cost, low-risk, and financially straitened patients in at least four ways. First, insofar as primary insurers cede certain catastrophic claims to the government, the state is injecting a public subsidy. Second, even if reinsurance were financed purely through insurer fees, reinsurance reduces the primary insurers’ risk, and thereby reduces their need to load on a risk premium. Third, primary insurers with reinsurance need not incur or pass-on the administrative costs associated with aggressive risk selection designed to avoid high-risk individuals. And, finally, to the extent that risk stabilization helps to, as John Jacobi describes it, “induce private plans to participate in precarious individual and small group markets,” this may foster price competition that exerts downward pressure on premiums.
But the headroom to be gained from reinsurance is not infinitely elastic and it is indisputable what Persad points out: “The imposition of small burdens on many in order to help a few greatly is contested in ethical theory, and its endorsement may rest on cognitive limitations in visualizing the magnitude of the population who experience the small burden.” Moreover, the spiraling expense of these treatments is not a given but a function of political will. As Persad says, “The number of patients with yearly claims over a million dollars rose by 87% from 2014 to 2017.”He pegs many of the expensive treatments as “halfway technologies,” incentivized by policies and exclusivities that misprioritize the targets of pharmaceutical development. How can extortionate pricing for this marginally valuable care justify financial burdens on every single enrollee or taxpayer? Yet the government, having created this covariate cost risk through its regulatory abdication, may through reinsurance simply pass-on the cost. I think of Colombia in the late 1990’s and early aughts, when pharmaceutical companies opportunistically sponsored patients with dire health needs, typically of higher socioeconomic status, to sue successfully for state coverage of treatments like the newest brand-name cancer drugs of marginal efficacy, while the public benefit package was strained to the point of excluding key preventive vaccines. Reinsurance is not immune to that dynamic, and we need vigilance on that front.
Assuming the greater upstream regulation that Persad proposes to curb misdirected technological development, I take a somewhat broader view of who benefits from reinsurance. The trade-offs to me are not so crisp, insofar as the “many” who bear small burdens also benefit from advantages of mutuality. These advantages are ones that prevailing methodological individualism sweeps behind its own cognitive limitations, behind the temptation to fetishize individual choices, despite Dworkin’s heroic attempts to correct for their inevitable short-termism and other biases. The “many” who bear the burden now can easily become the catastrophic “few,” as the Health Care Cost Institute clearly showed in the 2018 study Persad cites in the article’s first paragraph. But even supposing any one of us manages to run the entire gauntlet without brushing up against a medical cost catastrophe, all of us, in the meantime, benefit from the knowledge that those in our community do not suffer from avoidable pain or fear, as that pain or fear could just as well be ours.
Christina Ho, Our Reinsurance Moment
, JOTWELL (September 9, 2020) (reviewing Govind Persad, Expensive Patients, Reinsurance and the Future of Health Reform
, 69 Emory L.J.
__ (forthcoming, 2020)), http://health.jotwell.com/our-reinsurance-moment/
Research ethics governance will never be the most popular subject in health law, but its importance is hard to overestimate. A significant amount of scientific research involves human participants, whether directly (interviews, observations, or experiments on human subjects) or indirectly (use of human tissue or data). In the absence of such research, our knowledge of human health would be much worse, and so too would our individual lives and collective well-being. Medical progress is contingent on scientific research.
Before almost all forms research involving human participants can take place, though, investigators must submit their project to a committee for review on the basis of ethical soundness and compliance with rules, standards, and principles (found in laws, guidelines, and other regulatory instruments). This committee is known as a Research Ethics Committee (REC) in some countries, like the United Kingdom. In the United States, it is known as an Institutional Review Board (IRB), as the board is connected to a particular institution, be it a university, hospital, or private organization.
Sarah Babb, Professor of Sociology at Boston College, recently contributed to this niche area with a short, empirically informed monograph on IRBs in the United States, entitled Regulating Human Research: IRBs from Peer Review to Compliance Bureaucracy. Babb’s interest in the subject was sparked by her own time serving on Boston College’s IRB. As she writes, she was surprised to learn that she was expected to not only “apply” the classic “Belmont principles” of research ethics, but also to apply guidelines from the “Common Rule” on the regulation of human subjects research and from other sources:
Over time, I came to understand that the image of IRBs as committees charged with weighing ethical dilemmas captured the tip of a much larger iceberg of activities. I could see that there was a more routine form of regulatory decision making that was important, but not widely understood or even acknowledged. (P. 3.)
Her book makes a quick read (indeed, there are only 117 pages of text), and an enjoyable one.
Babb’s central thesis is that IRBs have transformed since the late 1990s from committees of peer reviewers – fellow academics making ethical judgements on the basis of scholarly expertise, but paying little attention to the letter of the regulations—to “compliance bureaucracies,” wherein full-time IRB administrators do much of the heavy lifting, often behind the scenes. Babb defines compliance bureaucracy as “a nongovernmental office that uses skilled staff—compliance professionals—to interpret, apply, and oversee adherence to government rules” (P. 5.) In this transformed governance environment, faculty board members still participate in terms of voting on whether to approve a project or expedited research protocols, but their work is simply not possible without IRB staff. This transformation, Babb argues, was due primarily to the growth in IRB scrutiny in the late 1990s by the Office for Human Research Protections (OHRP), which is situated in the federal Department of Health and Human Services. In turn, there was consequential growth in funding from research institutions to invest in IRB administration to better manage the risk associated with OHRP audits and enforcement actions. IRBs today are led not by peer reviewers, then, but rather a professionalized service of research administrators who know the nuances of IRB management. Babb’s case is summarized thusly:
…human research protection bureaucracies supplanted amateur IRBs both because they could make sense of the rules and because they were better equipped to manage the demands of auditable compliance. They could meet regulators’ demands for precisely recorded, auditable indicators, while addressing organizations’ need for efficacy, as compliance became increasingly intrusive and expensive. (P. 11.)
A second thesis that Babb advocates is that independent IRBs—IRBs disconnected from an academic institution and run for-profit – have proliferated in the last two decades, in large part due to two reasons: (1) the high cost now associated with running an IRB at an academic medical center or institution, and (2) the perceived high competence and fast turn-around time that private IRBs offer. Independent IRBs now review the majority of privately sponsored biomedical research, such as research sponsored by pharmaceutical companies). These independent IRBs have influenced the whole IRB apparatus in recent years, foremost those still situated at universities and at affiliated academic medical centers. The standards set by independent IRBs have spread by way of market competition, private accreditation, and the desire to adopt widely accepted best practices. There are plenty of concerns one may have about independent IRBs—and Babb does share her own concerns and acknowledges the benefits of a centralized government role in human research protections (as in the United Kingdom). Yet she rightly points out that a market-driven, privatized system can carry some advantages depending on legal and socio-political context. In the United States, a key advantage is that it can provide protections beyond the reach of antiregulatory politics, which are more pronounced than in almost any other country. As Babb writes, “In the case of our protections for human research subjects, it is important to clearly understand the imperfections—but also to acknowledge that our workaround framework is a great deal better than nothing. In this day and age, there is something to be said for that”. (P. 117.)
Babb’s central thesis is, on the whole, convincing. In large part, it is evidenced by the corpus of empirical data she has gathered through interviews over many years. I somewhat agree with her claim that this transformation is largely an example of the quirkiness of American governance, whereby in the absence of strong centralized government activity, governance is delegated (and strongly decentralized) to local, private actors, sometimes with specialized offices staffed by skilled workers. I would note, however, that professional staff have proliferated in other countries that have research ethics governance structures similar to the United States’, such as Canada, which has “Research Ethics Boards” (REBs) at local institutions. Based on my personal experience, these are also largely run and managed by full-time staff. Similar instances may also be found in other federal systems with decentralized research ethics governance structures, such as Australia.
While Babb may overplay the American-ness of the story, it remains the case that a transformation has indeed taken place in how IRBs function in the United States, and that the growth of independent IRBs, many of which lack adequate transparency and accountability, is cause for concern. Babb’s book makes for an interesting comparison to work done by ethics committees in other countries, such as the National Health Service RECs in the United Kingdom, which I recently investigated. I found that while professional staff are also crucial for the work that is done by NHS REC members, the members still very clearly play the central role. While I didn’t investigate the transformation question per se that is at the heart of Babb’s book, I would venture to say that there has been some shift over time in NHS RECs from peer review to a limited form of compliance bureaucracy, but it is not nearly as pronounced as it is in the United States. What is certainly the case, though, is that ethics committees should be seen as regulators in their own right.
In sum, Babb’s book is a welcome addition to the scholarship on research ethics governance. For those interested in this area of health law, it is a must-read.
Nelson Mandela has been quoted as saying “Resentment is like drinking poison and then hoping it will kill your enemies.” Jonathan Metzl’s 2019 book shows how the intersection of race, politics, and health in three states illustrates Mandela’s simile. Health law scholars concerned about health justice are familiar with research findings that the chronic stresses of living in a racist society contribute to poor health outcomes for people of color, particularly black people. But Metzl–a psychiatrist with a PhD in American Culture–reverses the lens and considers how entrenched racism affects white people. The book views white people not as objects of discrimination or even as perpetrators of racist actions, but rather as political actors whose racial anxieties leave them ripe for manipulation by political and corporate interests. It offers three case studies of how conservative GOP policy issues affect white population-level health. Specifically, Metzl explores how policies like loosening gun control laws (Missouri), rejecting the ACA’s Medicaid expansion (Tennessee), and drastically cutting taxes on corporations and the wealthy (Kansas) garnered popular support by implicitly or explicitly promising to protect the status of white people, a status perceived as threatened by progressive policies and an increasingly diverse society. What Metzl finds is that conservative political victories came at the steep cost of poorer health and rising death rates, both for the minority and immigrant communities who were their targets, but also for white supporters. He concludes: “white America’s investment in maintaining an imagined place atop a racial hierarchy–that is, an investment in a sense of whiteness–ironically harms the aggregate well-being of US whites as a demographic group, thereby making whiteness itself a negative health indicator.” (P. 9.) Hence the title, “Dying of Whiteness.”
Missouri is Metzl’s first stop. He explores how the state transformed from having relatively strict firearm registration laws to enacting some of the most expansive gun rights laws anywhere, including its so-called “guns everywhere” law. Some of the book’s most poignant moments come when Metzl talks with men and women who lost family members to suicide by gun. A consistent refrain in Metzl’s interviews was that guns and gun policies were not to blame for the lives lost. But as Metzl dives into and crunches the vital statistics regarding cause of death in Missouri, he finds that, while white Missourians may support permissive gun laws so they can protect themselves from dangerous “others,” the rate of white male gun suicides has skyrocketed. Some number crunching permits Metzl to calculate the cost, both in terms of financial costs and years of life lost, of the high white male suicide rate. (If you would like to hear more about this case study and are a AALS member, check out Sidney Watson’s excellent presentation (at 21:50) from the 2020 Annual Meeting.)
Metzl measures impact in Tennessee as well, estimating that the state’s “refusal to expand Medicaid cost every single white resident of the state 14.1 days of life.” (P. 13.) Using focus groups of men, Metzl tries to understand Tennessee’s transformation from “a Southern beacon for progressive approaches to health care for low-income people” (P. 133) to a Medicaid expansion holdout. Those focus groups revealed historically grounded and racially inflected negative responses to “government” among many white men, as well as a conviction that expanding Medicaid would mean having to pay for black people and immigrants. Ultimately, according to Metzl, having health care reform as a common enemy provided white men with beneficial group cohesion and an affirmation of the value of their whiteness, even as it deprived them of access to needed health care.
In Kansas Metzl examines the “backlash conservative takeover” of state government led by Gov. Sam Brownback, which featured massive tax cuts and budget cuts to shrink the role of government. This austerity regime’s impact on public education–once a gem in Kansas’ crown–is Metzl’s particular focus. He describes how school systems suffered and declined and how budget cuts amplified racial and economic inequities in public education. In this way and others, “[a]usterity codified hierarchy.” (P. 217.) Although health repercussions were less immediate than in Missouri and Tennessee, Metzl also examines increased high school dropout rates and studies demonstrating decreased life expectancy for persons without a high school degree to find long-term, “politically induced” (P. 258) health effects of education cuts for both black and white Kansans.
I recommend Dying of Whiteness to anyone interested in health law and policy, as it offers insights into voter behavior that, viewed from afar, may appear irrational. I’m white and I grew up in Tennessee, and reading the book gave me a richer appreciation of how perceived threats to white racial status and privilege fueled the State’s objectively self-defeating decision to reject the Medicaid expansion. Moreover, Metzl’s narrative exemplifies a “health in all policies” mindset and illustrates both direct and distal policy impacts on health. He reminds readers that “fancy upstream policy solutions” (P. 117) are likely to be ill fated as long as the cultural and political landscape fosters racial division and vilifies compromise. In this regard, Metzl seems to sing from the same page as others who argue that institutional and structural racism presents the fundamental impediment to adopting equitable health policies in the US.
I really liked this book for several additional reasons. For one thing, Metzl’s prose is lucid and vivid. I caught myself highlighting turns of phrase nearly as often as noting substantive points. (For example, “[o]vert religiosity and conservatism emerge in deep twang” from the Tennessee focus groups. (P. 144.)) In addition, beyond deploying statistical analyses to support his conclusions, Metzl delves into regional history and culture to help readers understand choices that might seem illogical to outsiders. For example, an extended examination of the racialized history of gun ownership rights and patterns offers insight into the cultural and symbolic meanings of guns in Missouri.
Finally, to my mind, Metzl achieves the delicate balance of portraying the regular people whom he interviews and interacts with respectfully, without being sympathetic to racist histories, structures, or sentiments. He’s willing to call out politicians who speak falsely, but he doesn’t belittle the voters who swallow those falsehoods. To be clear, Metzl identifies how the policies he describes negatively affect minorities and immigrants, but anyone who has been paying attention knows about those impacts. His real contribution lies in opening the reader’s eyes to how whiteness hurts white people materially and physically. If Dying of Whiteness has villains, they are not the white folks experiencing racial anxiety in a changing world. Rather, the villains are the politicians and corporate interests who play upon those anxieties to put in place self-serving policies that harm the very voters who support them. They promise greatness but deliver “a biology of demise.” (P. 281.) In the end, the book offers a cautionary tale of how attempts to preserve the privileges of whiteness end up harming everyone.
Political and social discourse is often characterized by an oppression Olympics. Which group, which characteristic, can assert that they are “more authentic, more oppressed, and thus more correct“? This dynamic appeared in full force during the Democratic primary. Was Pete Buttigieg more oppressed because of his homosexuality? Elizabeth Warren for being a woman? Kamala Harris for being a black woman? As a recent article by Khiara Bridges shows us, thinking about oppression in this way misses the nuance of how different forms of oppression intersect with one another. In Race, Pregnancy, and the Opioid Epidemic, Khiara Bridges weaves together some of today’s most perplexing issues.
Bridges begins with a puzzle. White privilege, as commonly understood, is supposed to promote the life outcomes of white individuals (and, conversely, undermine those of people of color). If that is the case, how can we explain the opioid crisis that has disproportionately undermined the life expectancy of white individuals? The problem can be stated more universally, beyond the opioid context: “[W]hen bad things happen to white people—when the jobs and the industries on which they once relied disappear, when their preferred university denies them admission, when they lose a promotion to a nonwhite candidate, when they die from suicide and drug overdoses at unprecedented rates—we are left to believe that white people experiencing these negative consequences did not have white privilege[.]” (P. 774.) Some might even argue that white privilege never existed to begin with. Perhaps other axes of oppression—sex or poverty—have more oppressive force than race.
Bridges uses the regulation, arrests, and prosecutions of pregnant people for the use of opioids to show how “white privilege is a double-edged sword.” (P. 775.) (She notes that because data collection in this context uses the category of “women,” she does too, although not just women become pregnant. I follow suit.) Bridges first sets up the paradox at the heart of the Article: she shows how white women—who putatively experience white privilege—are nevertheless the face of opioid punishment. Bridges begins by providing an overview of the opioid epidemic that has resulted in 400,000 overdose related deaths between 1999 and 2017. The face of the epidemic, she notes, is white, although the distribution of opioid deaths across race tracks the racial population of the American population as a whole. To my mind, such a framing is appropriate: while deaths are not racially disproportionate in purely numerical terms, they are disproportionate in terms of how economic, class—and race—privilege is distributed. Given the disproportionate capture of such privilege by white America, the fact that white individuals perish in proportion to their representation in the population as a whole is remarkable.
Bridges contrasts the treatment of the opioid epidemic with that of the crack-cocaine epidemic. If the opioid epidemic codes as white, crack cocaine was associated with black America. Scholars suggest that this differential coding resulted in unequal treatment: the opioid crisis is generally understood as a medical problem; white opioid addicts are victims who cannot help their fate. Black crack addicts, on the other hand, were demonized; the crack epidemic was the subject of criminal, not medical, intervention.
Pregnancy, however, is an exception to this general rule—unlike other opioid users, white pregnant women who use opioids are treated as criminals. Bridges documents how pregnancy has historically been the site of state intervention. Historically, although the evidence suggests that women of color and poor women do not disproportionately use substances during pregnancy, “prosecutions for substance use during pregnancy have tended to fall on the shoulders of black women.” (P. 820.) Between 1973 and 2005, before the opioid epidemic hit its stride, 52% of women arrested for substance abuse during pregnancy were black. Part of the racial disparity of these “first generation prosecutions” (P. 823) came from the higher rates of testing poor black women experienced, as Bridges’s body of work documents. It also developed as a result of state decisions about which substances would be criminalized. Bridges writes, “A number of … substances can harm fetuses…. the state’s choice to single out users of crack cocaine for criminal punishment, while ignoring users of the abundance of other substances that are unhealthy to fetuses, is a consequence of crack cocaine having been racialized as black.” (P. 819.)
The opioid epidemic, however, has resulted in a rash of “second generation prosecutions.” (P. 824.) Now, white women are being targeted at unprecedented rates, with white pregnant defendants prosecuted for substance use in South Carolina outnumbering black defendants 16:1 in 2014. Further, although state laws mostly criminalize only opioid possession, rather than opioid use, prosecutors have turned to other statutes to criminalize opioid-use-while-pregnant. Pregnancy thus expands white women’s criminal liability beyond that which non-pregnant opioid users would experience (to the extent they experience any criminal liability at all).
Herein lies the paradox: how could individuals with “white privilege” become the face of opioid prosecutions? How can one reconcile scholarship that treats crack prosecutions as a manifestation of racism and white privilege with the white face of opioid prosecutions?
As Bridges explains, the concept of white privilege has been problematized in the face of suffering among white individuals. Some scholars argue that only certain kinds of white individuals experience that privilege, or that white privilege may sometimes yield only intangible benefits. However, Bridges argues that white privilege is very much responsible for the coercion that poor pregnant white opioid users experience.
First, “white people are at times made vulnerable to disadvantage because they occupy a privileged social location.” (P. 828.) For example, some accounts suggest that “white people’s drug use is a result of their disappointment with their current social and financial condition—a disappointment produced by the belief that they were going to be better off,” (P. 827) in part, perhaps, because of their race. Minorities, who lack similar expectations, are therefore arguably less susceptible.
Next, Bridges points to the history of the eugenics movement. There, while white women who were “imagined to bear substandard genes” (P. 830) were subject to sterilization to protect the integrity of the white race, people of color—whose race was already inferior—were not. Similarly, in the opioid epidemic, she suggests, an overriding preoccupation of the well-being of white babies, undergirded by a preoccupation with preserving the “vitality of the white race,” (P. 832) drives prosecutions. Unlike the “crack babies” of the crack-cocaine epidemic, which commentators denounced as future burdens on the state, white babies in the opioid crisis are treated as sympathetic victims. Put simply, “[i]nasmuch as society prizes white procreation over its nonwhite complement, the higher esteem in which it is held has made white reproduction a site of particular interest to the state. This interest, in turn, has opened white people up to state violence—this time in the form of prosecutions for opioid use during pregnancy.” (P. 833.)
Third, Bridges points out, race is constructed. While the concept of “whiteness” at the founding of the nation was quite limited, over the centuries various ethnic groups (such as those of Irish and Polish descent) were incorporated as fully white members of society, to better draw the divisions against people of color. She suggests that “[t]he most radical interpretation of [opioid] prosecutions would be that they are about the desire to exclude from the white race a segment of people with a nominal claim to inclusion.” (P. 841.) I think this interpretation is perhaps too radical and sits uncomfortably with Bridges’s earlier suggestion—white pregnant women are disciplined precisely because of their membership in the white community. But Bridges’s overall point is well taken. Although she does not explicitly draw on expressive theories of law, I read Bridges as pointing to the expressive function of opioid prosecutions: chastising women who have “degraded” their “whiteness… functions to establish what whiteness really is. Whiteness is not poverty, criminality, substance dependence, or corrupted pregnancy.” (P. 843.) These prosecutions do the work of reinforcing race boundaries by policing those who transgress the boundaries of race. By being made “examples” of, pregnant white women prosecuted for using opioids are once more victims of the class privilege they putatively enjoy.
If on one hand white women are rendered vulnerable by white privilege, they are also made vulnerable because of black disadvantage. White pregnant women are not just white—they are also pregnant women. In that way, they share a social space with black women who experienced profound racial disadvantage in the crack cocaine context. Path dependence in that space damns white pregnant women as well: while opioid dependency is treated as a health problem, very differently from the crack cocaine epidemic, for pregnant women, “the racist prosecutions that took place during the crack cocaine scare might have normalized” punitive approaches. (P. 850.) “The result is the reduction of white privilege’s power to protect its holders from disadvantage.” (P. 850.) In this way, “sex and gender,” specifically in the context of reproduction and fetal welfare, “constrain the promises of white privilege.” (P. 847.)
Bridges’s seamless synthesis has broader implications, beyond the specific context she excavates. First, to my mind, it shows how discourses of power can provide cross-cutting support to each other. It is no accident that white supremacy uses as its sacrificial cautionary tales those who experience disadvantage because of gender and economic status. In shoring itself up, it also reinforces these other categories of oppression. This reinforces key insights of intersectionality theory and of activists on the ground who would discard an oppression Olympics metaphor for one of interlocking oppression.
Further, it offers insights for other ways in which discourses of power can often harm those who putatively benefit from them in other contexts. Scholars have noted how masculinity discourse can actually work to harm men; in various contexts, men who feel they have not lived up to the ideal that gender hierarchies expect of them exhibit behaviors that are problematic from a public health standpoint. They do not obtain required mental health support, and engage in substance abuse at higher rates. Indeed, gay men, who may feel less constrained by traditional gender roles, are more likely to seek out mental health care than straight men. Similarly, bisexual individuals, who some may assume occupy a higher status on the hierarchy of sexual orientation than lesbian and gay individuals, suffer far worse health outcomes than both gay or straight people. As scholars and practitioners incorporate understandings of social structure and injustice into healthcare, they must nuance their understanding of the roles we play with respect to the various discourses we occupy.
Cite as: Craig Konnoth, Intersectionality in the Opioid Crisis: Anti-Black Racism and White, Pregnant, Opioid Users
(May 12, 2020) (reviewing Khiara M. Bridges, Race, Privilege, and the Opioid Epidemic: White Privilege and the Criminalization of Opioid Use During Pregnancy
, 133 Harv. L. Rev.
770 (2020)), https://health.jotwell.com/intersectionality-in-the-opioid-crisis-anti-black-racism-and-white-pregnant-opioid-users/