The Journal of Things We Like (Lots)
Select Page
Lindsay F. Wiley, Health Law as Social Justice, 24 Cornell J.L. & Pub. Pol’y 47 (2014), available at SSRN.

A longstanding and confounding divide exists between treatment of the individual and care for the collective. While the former is deemed health care, the latter is called public health, and American medicine has long maintained this dichotomy (a story that Paul Starr told decisively in The Social Transformation of American Medicine). This divide exists not only in the medical establishment but also in the law pertaining to it. While the field called health law tends toward being subject matter inclusive, it paradoxically has excluded public health law as a separate discipline. In part, this dichotomy may result from public health’s focus on the whole community rather than individual relationships, rights, and treatments. But also, this divide is strengthened by the historic primacy of private law rather than public law in health care, a hierarchy that has reinforced bias toward protecting medical stakeholders’ rights in their professional space. In addition, the law has sidestepped race, gender, economic, and other disparities in health care, allowing inequalities to fester. Though health care reform took on some of these issues, health disparities are a persistent problem. Fortunately, Professor Wiley is battling these old lines with her new work.

Health Law as Social Justice makes a convincing case that health law includes more than health care finance, bioethics, and regulation of related entities and markets. Instead, Wiley argues, health law and public health must be intertwined to effectively battle health disparities. The article contends that such a merger could be facilitated by drawing on the social justice movement and its understanding of the societal factors that affect certain industries and their corresponding fields in the law. Wiley argues that America’s deeply entrenched health disparities can only be uprooted by the communitarian considerations inherent in the booming study of social determinants of health, which she urges can translate to policy reform, effective advocacy, and legal change through broadened health care law inquiries.

Professor Wiley begins by exploring three variants of social justice: the environmental justice, reproductive justice, and food justice movements, each of which includes health disparities in its core objectives. These movements offer key takeaways for the “health justice” theory being developed here, which include focus on collective action and community in health; the role of government in securing social determinants of equality; and the democratizing instincts of these three movements that encourage participation, reject explicit and implicit biases, and encourage cross-pollination of societal priorities. The three sub-movements provide a foundation for importing social justice concepts into the field of health law.

The paper next considers existing legal mechanisms for addressing health disparities, beginning with a brief tour of major federal statutes that have addressed health disparities over time, including Medicare, Medicaid, EMTALA, HIPAA, COBRA, and the ACA. The article describes that the ACA does more to address disparities in health than create near-universal insurance coverage; the Obama Administration also has developed a variety of plans and committees to address enduring health disparities along the lines of race, ethnicity, income, and other factors. In contrast, Wiley highlights certain types of legal incentives and programs designed to encourage healthy behaviors, such as “wellness programs,” which some states have eagerly implemented for their Medicaid programs, and which were encouraged for employers by the ACA. These and other healthy behavior laws often disproportionately penalize the poor for failure to comply with measures that require a health literacy many do not possess. Similarly, Wiley argues, “healthy community” initiatives create tensions for the very communities they are meant to benefit, especially given the industry interests driving food accessibility in low-income neighborhoods. According to Wiley, the dissonant and confusing state of health law reflects the multifarious interests and general perplexity facing lawmakers at all levels who are attempting to address social and other determinants of health.

The idea of health justice then is considered through a three-part framework that facilitates tackling health disparities via mechanisms alternative to traditional market competition and patients’ rights paradigms. To that end, Wiley first recommends broadly defining health law to include all social determinants of health rather than just finance and delivery. Second, she suggests taking a hard look at individual responsibility approaches that may harm the communities they are meant to serve. And third, she proposes implementing interventions that engage communities in designing methods used to address their health disparities rather than simply imposing intermediations. Wiley’s use of social justice theory as a vector to further health care reform and to help reduce disparities is persuasive and important. The theory of “health justice” is such a significant idea that I wished for a cocktail party definition in addition to this complex three-pronged engagement.

Perhaps a future project could also incorporate work on vulnerability theory, which relates strongly to social justice themes and could further strengthen the argument that the old paradigms do not account for enough of the human condition to facilitate health justice. Vulnerability theory adds to the critiques of “market justice” and individual rights advanced in this article by further underlining the state’s responsibility for improving health based in the notion that all citizens are vulnerable, and in similar ways. Like health justice, vulnerability theory rejects the limited individual pursuit of rights-based equality, and it complements the normative themes in the paper.

Professor Wiley has made an important contribution just by, as she stated, “start[ing] a conversation” about health justice and how it can fit into the debate about health care policy in America. The constellation of factors that she names address both individual and communal health, and health disparities will only be defeated through such comprehensive catalysts for change. While moves such as expanding Medicaid and leveling insurance accessibility are key steps toward eliminating health disparities, they are only pieces in a larger puzzle. I look forward to Professor Wiley’s further development of the health justice principle to help complete that puzzle.

Download PDF
Cite as: Nicole Huberfeld, Addressing the Health Care/Public Health Dichotomy through Justice, JOTWELL (April 2, 2015) (reviewing Lindsay F. Wiley, Health Law as Social Justice, 24 Cornell J.L. & Pub. Pol’y 47 (2014), available at SSRN),