By Aziza Ahmed
We are facing a health crisis in America. In thinking through the causes of health disparities, a now well-developed body of public health law scholarship focuses in on the central issue of law as a social determinant of health. This scholarship examines the issue of how legal rules can determine health outcomes. Property laws that explicitly or implicitly discriminate against minorities, for example, often result in poor Black communities living in neighborhoods in which they may be more exposed to pollutants, resulting in higher rates of breast cancer or asthma. Or, immigration practices, including ongoing profiling at the border, as well as detention practices, may have mental and physical health impacts.
What is missing from legal scholarship on the social determinants of health is an account of how communities respond to change the legal environments that have the effect of producing poor health outcomes. In other words, how do communities demand a better legal system with regard to health inequality? Here, we must turn to social movements who often drive our national conversation on access to health care by doing the hard work of identifying, naming, and drawing attention to the complexity of issues that people face.
As I argue in my forthcoming book, tentatively titled Feminism’s Medicine: How Law, Science, and Social Movements Changed the AIDS Response, social movements play an integral role in altering the legal environment that produces disparate health outcomes along race and gender lines. In the book, I tell the story of how individuals who experience health-related inequalities join forces with feminists working on AIDS to organize to alter the regulatory environment that excludes minority women from AIDS care and treatment. Their victory altered the entire AIDS response and brought resources to women struggling to survive the epidemic.
While the literature on social movements in the specific field of health law is nascent, in the field of medical sociology, scholars have long documented the way racial minorities challenge the status quo when it comes to health.
In Body and Soul: The Black Panther Party and the Fight Against Medical Discrimination, for example, Alondra Nelson documents how the Black Panther Party responded to community health needs in an environment in which people were both being deprived of adequate health services due to race and experiencing racism in the clinical environment. The Black Panthers both build the health care resources the African-American community was being deprived of while demanding accountability from service providers. Nelson’s account highlights how health care is not just about health. Health outcomes and ability to access health care is about inclusion in a political community.
If health is about political community, ours continues to fail minorities. We continue to witness a racialized public health crisis with COVID-19. Rates of cases and hospitalization are greater in native, Asian-American, Black, and Latinx populations, and highest in the Black and Latinx communities.
Within the field of public health, we see a response brewing with greater calls for police accountability from public health experts and greater attention to our vast health disparities. In response to the broader crisis, organizations including Black Lives Matter (BLM) call for attention to the many aspects of life that render an individual more likely to contract the coronavirus, from being an essential worker, to having a pre-existing health condition, which are often more common among people who identify as Black:
“For decades, we have been fighting to improve the material conditions of our lives. We have fought against and worked to overcome systemic racism, economic inequality, and mass incarceration. Now, during a global pandemic, the impact of this bias is clearer than ever.
This virus is devastating to us. We are the essential workers who keep the country going; we are the mail carriers, delivery personnel, transportation providers, and hospital workers. We cannot just #stayhome.”
Although not in the academic language of social determinants of health, BLM acknowledges the systemic dimensions of poor health outcomes. In this case, the BLM statement, alongside the statements of other social movements, makes clear that layered realities formed from individual experiences of work and survival, structured by legal rules that include labor, employment, and housing make people vulnerable to COVID-19.
Their claims challenge expert narratives on public health that often describe structural issues and health outcomes as though they can be neatly teased apart. Structural analysis in bits and pieces has become necessary in our world where evidence provides the basis for funding and resources, which are also often delineated by area. BLM’s insistence on complexity is part of what differentiates the claims of activists from the claims of experts. Our current health care crisis demands that we listen.
Aziza Ahmed is a professor of law at Northeastern University School of Law. Her scholarship examines the legal, regulatory and political environments regarding health in US domestic law, US foreign policy and international law.
