By Dayna Bowen Matthew
Justice is good for health [and] . . . health is the byproduct of justice.
— Norman Daniels, Bruce Kennedy & Ichiro Kawachi (Boston Review, 2000)
Among the most salient lessons to be learned from the coronavirus pandemic are that unjust laws produce unjust health outcomes, and that justice is just plain good for America’s health.
Health justice is the moral mandate to protect and advance an equal opportunity for all to enjoy greatest health and well-being possible. Health justice means that no one person or group of people are granted or excluded from the means of pursuing health on an inequitable basis. To achieve health justice, societal institutions such as governments and health care providers must act to advance equality, by increasing fairness and decreasing unfairness of their current and historic impacts on populations.
Further, health justice requires institutional commitment to removing unfair, unjust, and avoidable barriers to good health and well-being that disproportionately affect the most disadvantaged populations. Health justice, therefore, is the only way for all members of society to have an equal opportunity to be healthy. In short, institutions that are not committed to achieving health justice are simply not committed to health.
Health equity is the core characteristic of health justice. Laws are the mechanism by which health equity is achieved, or structurally denied. It is useful to think of health equity as the outcome when laws ensure that society’s opportunities, power, and resources are equally available to all. Professor Paula Braveman explains this concept without expressly identifying the all-important legal mechanism:
Health equity means that everyone has a fair and just opportunity to be as healthy as possible. This requires removing obstacles to health such as poverty, discrimination and their consequences, including powerlessness and lack of access to good jobs with fair pay, quality education and housing, safe environments, and health care. For the purposes of measurement, health equity means reducing and ultimately eliminating disparities in health and its determinants that adversely affect excluded or marginalized groups.
To complete Professor Braveman’s definition, we must include the role of law in creating or failing to create the “fair and just opportunity to be as healthy as possible.”
Fair labor laws affect access to good jobs with fair pay. School funding and anti-discrimination laws determine the extent to which all enjoy equal access to quality education. Civil rights and anti-pollution laws determine who gets clean air and water. And in America’s health care system, public and private insurance laws determine access to health care. A society can achieve health justice by legally protecting equal access to all of the social determinants of health, regardless of race, religion, ethnicity, sexuality, age, gender, or ability. Conversely, when these laws are un- or under-enforced, the outcome is health inequity and health injustice.
Structural racism describes the specific type of inequity and injustice that flows from systemically legalized discrimination. Structural racism is a systemic organization of institutions at all levels of society that affords differential access to all societal resources and opportunities by race. It is distinguished from individual prejudice, bigotry, or bias by its scope. When a prejudiced, bigoted, or biased legal infrastructure organizes societal resources, the racism does not merely affect individual interactions and relationships. Instead, it becomes structural and extends beyond individually-held beliefs and interpersonal interactions, to affect institutions at every level.
Specifically, when structural racism permeates America’s education, housing, employment, and legal institutions, and thereby generates advantages for whites and disadvantages for Black and Brown populations in many of the social determinants that affect health, then it produces health inequity and injustice.
Structural racism produced the racialized residential patterns that are prevalent in the United States and that were a primary pathway for the virus to reach African Americans and other marginalized groups during this pandemic. The SARS-Co2 virus spread virulently through densely populated cities where higher concentrations of Black and LatinX people live, work, and play.
The racially stratified American labor market proved an indispensable vehicle for structural racism to disproportionately expose minority populations to COVID-19. Nationwide, 30% of all bus drivers and nearly 20% of all food service workers, store stockers, and janitors are Black. The majority of farmworkers – 68% – were born in Mexico. This means that Black and Brown workers were disproportionately represented in the low-wage fields deemed “essential.”
The COVID-19 pandemic is the latest demonstration of the deadly health impact of structural racism. The disproportionate morbidity and mortality burdens borne by populations denied equal access to the social determinants of health tragically confirm that structural racism is the fundamental cause of health disparities. To correct this pervasive inequity, we must legally protect equal access to the social determinants of health, thereby ensuring health justice.
Dayna Bowen Matthew is the Dean and Harold H. Green Professor of Law at the George Washington University Law School.