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Angela P. Harris & Aysha Pamukcu, The New Civil Rights of Health: A New Approach to Challenging Structural Inequality, 66 UCLA L. Rev. __ (forthcoming 2019), available at SSRN.

As of 2018, health disparities cost the U.S. $93 billion in excess medical costs and $42 billion in lost productivity per year. Since 1985, the federal government has recognized that there are health disparities, yet research and programs addressing these problems have focused on individual choice, ignoring the significance of structural inequality. Even when the government announced that health disparities were caused by the social determinants of health (SDOH), which are outside an individual’s control, it focused on solutions concerning individual choice. In The New Civil Rights of Health, Professor Angela Harris and Aysha Pamukcu argue that in order to address health disparities, we must understand that individual choice is limited by structural inequalities caused by subordination, “a set of policies, practices, traditions, norms, definitions, cultural stories, and explanations that function to systematically hold down one social group to the benefit of another social group.”

Subordination, particularly racial subordination, limits individual choice and control over access to health-promoting opportunities and resources. To address subordination and end health disparities, the authors suggest a partnership between public health advocates trying to address the SDOH and civil rights advocates trying to address structural inequality. Building on the work of other public health and critical race scholars, Harris and Pamukcu discuss the limitations of public health and civil rights laws to address subordination and propose a new “civil rights of health” that builds on the “health justice framework” to address subordination, which leads to health disparities. By adopting this new “civil rights of health,” advocates 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.

The article is significant because it not only emphasizes how subordination impacts population health, but also how subordination influences assumptions, methods, and research priorities in public health. The authors note that although public health advocates understand that social context (e.g., unequal access to housing, education, and employment) limits individuals’ health-promoting opportunities and resources, most advocates ignore the impact of subordination on individual choice. For example, although the overall prevalence of cigarette smoking in the U.S. has declined significantly, use has not declined by racial minorities and the poor. This is in part because of subordination. Due to governmental policies and practices, tobacco retailers are disproportionately placed in low-income and racial minority communities, tobacco companies systematically target people of color in marketing campaigns, and the government collects increased taxes from these communities for cigarette purchases. This allows the government and tobacco retailers and companies to make money, while systematically holding down the poor and racial minorities. Obscuring the impact of these subordination policies and practices, most public health research studying on continued disparities in smoking often focuses only on individual choice in the research question, design, and conclusions.

After making the case that public health has limitations, the authors highlight the limits of current civil rights law to address subordination. Recently, Hahn, Truman, and Williams have shown that when the government enforces civil rights laws to address racial discrimination in healthcare, employment, and housing, racial health disparities decrease. Yet, there are several limitations in using civil rights laws to address all of the subordination that causes health disparities. First, civil rights laws do not protect all groups against discrimination, e.g., the poor. Second, the laws only provide “negative rights’ (the right to be left alone by government), not “positive rights” (governmental obligations for its citizens). Third, courts have limited civil rights protections to individual inequalities, not structural inequalities. Finally, courts have also required showings of intent or evidence of disparate impact that cannot be explained by racially neutral reasons.

Thus, the authors suggest that public health and civil rights advocates work together to create a new “civil rights of health” that encompasses the health justice framework, which combines knowledge of the SDOH with a commitment to legal principles of equal justice. Building on the discourse of prior justice movements (including the environmental justice, climate justice, and food justice movements), the authors propose going beyond law to include “empowerment” and prioritizing the right of racial minorities, the poor, and others to participate in decision-making and policymaking, in concert with political action.

By incorporating the health justice framework into the discussion, the authors place subordination at the forefront of the conversation about eradicating SDOH, explicitly stressing that current efforts to address SDOH have failed because the “universalist-individualist approaches to disparities in access to resources and exposure to harm are inevitably limited and inadequate.” Their new “civil rights of health” proposal expands current civil rights laws to address structural inequalities that result without intent. They also recommend the use of impact assessments to evaluate the impact of current policies, which can then be used to advocate policy change or create a record of intentional discrimination. Finally, the authors champion state and local efforts to address subordination through innovative health-related protections, such as minimum wage increases, paid leave, and safe and affordable housing in all neighborhoods.

The authors offer readers a new framework for addressing health disparities that is not limited by an outdated notion of the supremacy of individual choice. Most valuably, the article incorporates lessons from civil rights law and prior justice movements to propose a new opportunity to end health disparities caused by subordination so that the entire population of the United States can achieve health and well-being.

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Cite as: Ruqaiijah Yearby, Individual Choice and Health Disparities: A Fallacy of Relevance, JOTWELL (October 31, 2019) (reviewing Angela P. Harris & Aysha Pamukcu, The New Civil Rights of Health: A New Approach to Challenging Structural Inequality, 66 UCLA L. Rev. __ (forthcoming 2019), available at SSRN),