A protester holds a sign with a quote that reads: "Pf all the forms of inequality injustice in health care is the most shocking and inhumane."

Structural Racism, Social Determinants, and the Contested Scope of Public Health Law

By Lindsay F. Wiley

For centuries, public health advocates have understood that our health is shaped by the conditions in which we live and work — conditions public health researchers now refer to as the social determinants of health. Law itself is a social determinant of health. Structural racism and other forms of socioeconomic subordination, which are embedded in our laws and public and private policies, are social determinants of health.

Unfortunately, these statements are not uncontroversial. Commentators have debated whether structural racism and other forms of subordination are social determinants of health, and whether dismantling these forms of subordination is within the legitimate scope of public health law and policy. Critiques run along at least three main lines—semantic, civil libertarian, and progressive.

The semantics of the social determinants of health matter. Increasing interest among policymakers, philanthropists, and educators in the social determinants means that how we define the term will have important consequences for allocation of resources and political will.

Partially in response to outcome-based reimbursement models, health care providers seeking to address individual patients’ material circumstances (e.g., housing, utilities, and transportation) have increasingly coopted the term social determinants of health. Some public health advocates prefer more distinct labels, such as structural determinants, political determinants, or legal determinants to distinguish the root causes of material deprivation and social subordination from the material needs of individuals. They are not wrong. Structural determinants are a subset of social determinants of health.

In the words of a 2010 report from the World Health Organization Commission on the Social Determinants of Health, the Commission “has purposely adopted a broad initial definition of the social determinants of health” which “encompasses the full set of social conditions in which people live and work” including both the “structural determinants of health inequities” and “the more immediate determinants of individual health.” The structural determinants of health inequities include “social and political mechanisms that generate, configure and maintain social hierarchies,” while the more immediate determinants of individual health include “material circumstances; psychosocial circumstances; behavioral and/or biological factors; and the health system itself.”

I prefer to use the original term — describing law and racism as social determinants of health — in an effort to reclaim its original, broader meaning. As a scholar of law and society, I also like how the term surfaces the socially constructed and contingent nature of law and structural racism.

The libertarian critique of conceptualizing subordination as a social determinant of health is at the heart of controversy over the legitimate scope of public health law and policy. The “old” public health law of communicable disease control focuses on medical countermeasures to attack the pathogen and altering the behavior of individual “hosts” to reduce their susceptibility to disease and the risks they pose to others. It supports an ethos of personal responsibility that reassures the healthy they needn’t worry overly much about becoming ill or taking responsibility for those who are.

In contrast, the “new” public health seeks “to expand communal provision” and address structural racism and other forms of social subordination. Proponents of the new public health adopt a social-ecological model and “search for defects in the community and the environment rather than in the individual; … to see social problems, in a word, as social.”

The tension between these models has shaped responses to earlier threats, including the HIV pandemic, tobacco- and diet-related illness, and substance abuse. And it is front-and-center in the coronavirus pandemic. Civil libertarian critics argue that the expansion of public health law and policy beyond its traditional focus on clinical and behavioral interventions poses a threat to individual freedoms. When the state intervenes under the banner of public health, they argue, it gains an “extra boost of legitimacy.” Antidiscrimination laws and other anti-subordination policies may be perceived as a threat to the liberty of employers, landlords, and others who benefit from the status quo. By framing these interventions as “new” public health measures, however, advocates for health justice seek to expand freedom and improve access to healthy living conditions for people whose subordination makes the status quo possible.

The progressive critique is different. Purportedly progressive commentators have argued that while they support commitments to economic justice and racial equality, they question the value of characterizing them as public health issues per se. Doing so comes at a cost, they’ve argued, because it threatens the coherence and neutrality of public health law as a field. Echoes of this critique are evident in recent calls to avoid politicizing medicine and expanding it beyond the purview of doctors’ legitimate expertise by embedding anti-racist teaching in the medical school curriculum.

The 2020 coronavirus pandemic “puts the final nail in the coffin of the progressive critique of new public health law rooted in the social-ecological model.” A broad vision of public health law that encompasses action on the social determinants of health — including structural racism and other forms of subordination — in “non-health” sectors such as housing, employment, and civil rights law is not only tenable, but essential. To the “so what?” progressive critique, recent collaborations across sectors offer a resounding reply. Calls for a health justice strategy for the coronavirus pandemic do more than merely point to public health impacts as a reason to do something about structural racism and other social determinants of health and leaving it at that. These collaborations demonstrate the power of placing public health principles at the center of legal frameworks that govern “non-health” sectors, and placing anti-racism and anti-subordination at the center of public health.

“[E]ither the social epidemiologists’ contention that socioeconomic disparities are a primary factor in causing good public health is accurate, or it is not.” The coronavirus pandemic has given us an answer—and has shown us that structural racism and other forms of subordination are a critical social determinants of individual and public health.  As Daniel Goldberg has argued, “policies consistent with the narrow model [of public health], which by definition do nothing to ameliorate social conditions, will do little to actually improve health in the aggregate.”

 

Lindsay F. Wiley is a Professor of Law and the Director of the Health Law and Policy Program at American University Washington College of Law.

The Petrie-Flom Center Staff

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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