Transitional Health Justice and a Care-First Response to Our Times

Christina S. Ho

Himani Bhakuni and Lucas Miotto have teamed up to place a useful concept in our midst, namely the concept of Transitional Health Justice (THJ).

They draw upon the scholarship concerning Transitional Justice, which can be roughly understood as an extension beyond “ordinary justice” to encompass “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses.” Transitional justice is not demanded when a society undergoes a smaller-scale disruptions, such as isolated episodes of disaster or armed conflict. After such events, society’s goal might plausibly be described as restoration after an aberrant event. But other ruptures go to the foundations of collective life, after which justice cannot be done by merely returning to the status quo ante, if indeed there is anything left to return to.

In the wake of the pandemic and rampant health disinformation, amidst the necropolitical horrors of the U.S. carceral security state run amok, given DOGE and the recent reconciliation bill’s plundering of our medical science and health infrastructure top to bottom, Bhakuni and Miotto’s call to train a transitional justice lens onto the crises in our health domain rings particularly urgent.

Accounts of health justice tend to focus on the justice of the health system we might envision, but the distance between this ideal and our previous normal, not to mention the distance from our current circumstances, can seem daunting. Bhakuni and Miotto help us map the preconditions of justice required to get from here to there. For instance, rather than rampant denialism, we need “acknowledgment and redressal of mass scale human rights violations that are markers of broken health systems.” (HHR 86.) We need to foster trust, reset norms, and nurture a shared understanding that enables people to inhabit new roles, new duties, and new social relations in the new system.

Colleen Murphy has identified four circumstances that characterize a society in need of transitional justice, and Bhakuni and Miotto have adapted that framework as four circumstances of transitional health justice: “(i) pervasive structural inequality, (ii) normalized collective and political wrongdoing, (iii) serious existential uncertainty, and (iv fundamental uncertainty about authority.” (Transitional Health Justice P. 218.) I argue the U.S. meets those now.

First, the presence of pervasive structural inequality seems inarguable. The persistent racial inequality of our health system and all the stratification exacerbated by COVID already signaled moral and practical crisis. The reconciliation bill that Trump recently rammed through Congress features a near-trillion dollar raiding of Medicaid to fund tax cuts for billionaires. Meanwhile border enforcement brutalizes, abuses, and denies needed medical care, targeting racial, ethnic, or religious minorities.

Second, the U.S. health system suffers from normalization of collective or individual wrongdoing. Such conditions, in Bhakuni and Miotto’s words, “erode faith in systems that govern…health and create a sense of helplessness. This can only be repaired with a change in the social relations between citizens and their public health systems, which would essentially require a transformation.” (Transitional Health Justice P. 221.) It is little wonder that patients have lost trust in the health system, given Trump, Robert F. Kennedy Jr., Roy Bhattacharya and others’ role in normalizing COVID and vaccine denialism, when in the post-Dobbs world, one’s ob-gyn may be restricted from providing life-saving reproductive health care, and when doctors are routinely conscripted by for-profit health insurers like United HealthCare to the project of denying needed coverage. All these corruptions and distortions corrode patient trust and inflict moral injury upon the providers facingpervasive pressure for wrongdoing.

A situation that calls for THJ is also one where people experience serious existential uncertainty; indeed, we now face constant heightened anxiety about our health. Apart from the epidemic of gun violence, the Trump Administration is simultaneously seeding future mass casualty events by defunding health care, dismantling FEMA, undermining vaccination, hobbling TSA, and eliminating weather forecasting capabilities. Add to all that ICE’s masked kidnappers and concentration camps, and the label “existential uncertainty” seems no overstatement. It is hard to deny that the infrastructure on which our health and security depend cannot be sustained and verges on collapse.

And finally, the circumstances of THJ exist when we have lost faith in the legitimacy of authority in our systems of health and safety. I don’t think my health law colleagues need much convincing that these circumstances are amply satisfied. RFK Jr. has fired the seventeen members of the Advisory Committee on Immunization Practices, threatened to fire the US Preventive Services Task Force, dismantled FDA, and shows no signs of stopping there.

With each of Bhakuni and Miotto’s THJ circumstances met, what then will provide the kind of Transitional Health Justice that is so clearly called for in our times? While TJ commonly prescribes a number of tools, including truth commissions, apologies, reparations, and accountability, such as “ineligibility for office, or other legal disabilities on the old regime’s adherents,” it is up to us to further specify what THJ requires in response.

Bhakuni and Miotto supply some clues when they declare, “THJ demands that whatever contributes to the circumstances of THJ be transformed—that the circumstances of THJ come to an end.” (HHR 85.) This formulation means that the objects of THJ are beyond the health system itself. I like that this frame points us not to individual or incremental but rather structural changes. And it gives us a reason why those structural changes, even if outside the health system, must be care-first. In other words, they must be designed and conducted with health in mind because it is transitional health justice that on the table. So the kind of Supreme Court, Executive Branch, and Congressional reforms we consider should be envisioned with an eye to whether they provide care and promote flourishing. Just as Gregg Gonsalves and Amy Kapczynski in the depths of the pandemic called for a New Politics of Care, Bhakuni and Miotto now draw from a different literature to sound the same call, and I take the chance here to amplify it.