In the 1980s, a vanguard of critical race theorists debated their contemporaries as to whether law could or should play a role in achieving equity — in particular, racial equity. Scholars such as Kimberlé Crenshaw and Patricia Williams argued that while legal discourse historically had been used to oppress Black, Indigenous, and people of color (BIPOC), history had shown that in the law also lay the seeds of empowerment. Conceptualizing BIPOC as persons endowed with legal rights, and as a community subject to heightened legal solicitude because of the historical injustices they have faced, has helped undergird their selfhood, dignity, identity and activism. Law could thus be a discourse of despair — but also one of hope.
Whether or not the years have proved those claims correct as to the law, today, a similar debate unfolds in the context of race, medicine, and health care. Today, medicine and the health care system embody discourses of power that rival the law. Will these discourses inevitably serve to oppress BIPOC — and if not, how can we harness their power to achieve justice? Those are the questions that this symposium seeks to answer.
Medicine and the health care system engage power discourses that can harm or help. The pronouncements of doctors, nurses, insurers, hospital administrators, school counselors, social security adjudicators, and many more, delineate the relationship between the health system and race. They frequently determine the life course of those they address: whether a child gets a fair education or suffers discipline, whether a person living with a disability gets access benefits, or is denied, and indeed, in many cases, whether someone lives or dies.
Further, medical discourse, and the power it exudes, is no longer limited to medical institutions. Consumers are increasingly conceptualizing of themselves using constructs developed in medical contexts. Their self-understandings and those of their families and communities are shaped through genetic profiles easily obtained through consumer testing kits. Their existence and behaviors are biometrically quantified through apps that measure their heart rate, brainwaves, and sleep and ovulation patterns. Their emotions and moods are partially — or fully — encompassed by medical concepts.
And medical institutions themselves encourage this dynamic, often for magnanimous reasons. Many institutions have started to engage lay individuals in developing medical policy and practices. Further, it has become clear that health and welfare is governed as much by social and environmental forces — so-called social determinants of health (SDoH) — as by inherited characteristics. Accordingly, medicine has turned for assistance to the law, social work, housing policy, and the like, thus imbuing those systems with medical logic and rationales.
Many of these changes have generated what I call “medical civil rights” that, at a general level, provide benefits to numerous individuals. Advocates rely on the language of medicine to seek rights, protections, and benefits for clients, using a range of state and federal statutes. The push to acknowledge and address social determinants has gained steam, with insurers from Aetna to Medicaid covering certain kinds of housing and even (in the case of Medicaid) employment assistance.
And yet, as this symposium shows, BIPOC are often left behind. Within medical institutions, BIPOC receive worse treatment, experience worse outcomes, and die at higher rates than their white counterparts. Such discrimination is embedded within medical institutions in deep and intersectional ways. In this symposium, Kimani Paul-Emile, for example, shows how lower status workers within medical institutions, such as orderlies and nursing assistants, who are disproportionately BIPOC, are generally an afterthought. In the COVID-19 crisis, such workers have received limited protections and support from the institutions where they work.
Outside traditional medical institutions, race remains an afterthought. As Ruqaiijah Yearby writes, racism, which determines life outcomes, is often left out of enumerated social determinants of health. Both she and Lindsay Wiley make robust cases for including race as such a determinant in this symposium. Wiley, in turn, anticipates and addresses objections to the inclusion of racism as a determinant. Indeed, blindness towards race colors which determinants SDoH scholars focus upon. For example, until a few years ago, policing, which disproportionately affects BIPOC, was not a major area of study for SDoH scholarship. Keon Gilbert’s contribution shows those links.
Indeed, invoking medical frames can often counteract the ability of BIPOC to invoke SDoH discourse. Genetic understandings of self can extend to genetic understandings of others. And, as Dorothy Roberts’s pioneering work has shown, genetic understandings of race revive old and dangerous chestnuts about race’s biological situatedness. For example, in the COVID-19 crisis, as Colleen Campbell’s contribution to this symposium shows, vaccination debates have fixated on notions of genetic and biological difference between race. This, in turn, shifts focus away from the gross social disparities that far better explain the dismal health outcomes among BIPOC during the pandemic.
BIPOC are thus in a no person’s land — generally left unprotected, and often, actively persecuted — by both law and the health care system. Michele Goodwin’s contribution to this symposium poignantly exposes that intersection, describing how, instead of attending to a patient who relied on an oxygen mask to breathe, medical personnel called a police officer whom they helped to disconnect the patient from her mask. Legal prejudice was backed by medical prejudice. Collaboration between these institutions resulted in the death of the patient.
Law and medicine thus interlink to create a robust power discourse that continues to enmesh BIPOC within systems of oppression they have long endured. But is there hope? Just as activists, advocates, and scholars have fought for — in certain times, contexts, and places, successfully — the liberatory potential of law, it may be possible to agitate so that the power discourse of law/medicine can be redirected into creating equity. We continue to explore those themes in future installments of this symposium.
Craig Konnoth is an Associate Professor of Law and Director of the Health Law Certificate Program at the University of Colorado Law School. Konnoth is the guest editor of Understanding the Role of Race in Health, a Bill of Health digital symposium.