Medicine often falls short of helping black, indigenous, and people of color (BIPOC). While many individuals successfully invoke medical framing to offer some assistance to address the serious burdens they face — as I explain in a recent article — such efforts have fallen short in the context of racial justice. BIPOC are either subject to hypervisibility — where their medical trait is made a defining characteristic of their existence — or medical erasure, where their medical needs are left unaddressed and ignored.
By Craig Konnoth, JD, M.Phil., Wendy Netter Epstein, JD, and Max Helveston, JD
Despite upping the stakes of America’s partisan divide, the pandemic has prompted bipartisan support for at least one cause — the rapid rollout of telehealth, which allows people to see their doctors by videoconference or telephone.
In last week’s executive order, the Trump Administration reaffirmed its commitment to the use of telehealth. While telehealth may be, in many ways, a panacea for access to healthcare, particularly in COVID times, we should be concerned that patients of color may be left behind.
By Matiangai Sirleaf
Two French doctors recently appeared on television and discussed using African subjects in experimental trials for an antidote to the novel coronavirus (COVID-19).
“Shouldn’t we do this study in Africa, where there are no masks, no treatment, no resuscitation, a bit like some studies on AIDS, where among prostitutes, we try things, because they are exposed, and they don’t protect themselves. What do you think?” asked Jean-Paul Mira, head of the intensive care unit at the Cochin Hospital in Paris on April 1, 2020.
By Claudia E. Haupt
The COVID-19 pandemic has highlighted the tradeoffs at stake for Black, Indigenous, and people of color (BIPOC) seeking reliable health advice.
While there are legal safeguards to ensure reliable health advice within the confines of the doctor-patient relationship, outside of that relationship, the First Amendment protects bad advice just as much as good advice.
Courts continue to interpret the First Amendment in an expanding, deregulatory manner and the health context is no exception. For example, one novel judicial interpretation challenges previously accepted applications of the police power in furthering public health. In a forthcoming article, “Public Health Originalism and the First Amendment,” my colleague Wendy Parmet and I explore some of the dangers associated with this deregulatory approach.
Overall, the beneficiaries of these recent developments tend to be powerful speakers. The costs have largely fallen on women, as seen for example in NIFLA v. Becerra, and those who lack access to reliable medical advice, who are disproportionately BIPOC. Current First Amendment doctrine thus has the dangerous potential to further exacerbate existing racial disparities in health.
By Seema Mohapatra, JD, MPH
When there is an outbreak or emergency, reports of racism and xenophobia often follow.
But in recent pandemics, there have been concerted governmental efforts to thwart nativist attitudes and prejudice, using law as a tool.
During the COVID-19 pandemic, however, instead of trying to extinguish racist attitudes, the Trump administration has actually spearheaded ways to “other” Asian Americans.
By Colleen Campbell
Recent calls for racial inclusivity in vaccine trials, which often rely on genetic rationales while emphasizing medical distrust among African Americans, unfortunately lack an equally robust critique of medical racism and the ongoing reasons for this distrust.
Even though race lacks genetic meaning, the COVID-19 discourse is rife with biological notions of race. Because of “[g]enetics related to racial differences” African Americans must be involved in clinical trials, said Dr. Larry Graham in an NBC News article. He continued: “We must be sure it works in Black folks.” For this reason, companies like biotech firm Moderna are enlisting Black religious leaders to heavily recruit African American participants. They are also exploiting networks previously used for HIV clinical trials.
When considering those on the front lines of the coronavirus pandemic response, most people likely envision doctors and nurses. However, there is an often forgotten, front-line workforce comprised of orderlies, nursing facility workers, and nursing assistants (“NAs”) that earns very little money, has few protections, and is largely Black and Brown and female. Many individuals in this group are also subject to a unique form of discrimination: rejection on the basis of their race or ethnicity by some of the very patients they are assigned to aid.
The millions of people who make up this group of essential workers constitute a substantial portion of the health care workforce and earn an average of $13.48 per hour despite the risks they take. Their work, which involves bathing, dressing, and feeding patients; brushing their teeth, and assisting with their use of the toilet, puts these workers at high risk of contracting COVID-19. Nevertheless, early in the pandemic, many of these workers lacked or had inadequate personal protective gear due to the tiered system used for distributing this equipment. Doctors and nurses were first in line for smocks, masks, and other essential gear; last were members of this underappreciated group of front-line health care workers.
Years before George Floyd begged to be released from under the knee of Officer Derek Chauvin, Barbara Dawson, a fifty-seven year old Black woman, died begging a police officer, John Tadlock, not to remove her oxygen mask. Her death occurred right outside the Calhoun Liberty Hospital in Blountstown, Florida, shortly before Christmas in 2015.
Just before Officer Tadlock’s arrival, Ms. Dawson arrived at the hospital seeking oxygen. The hospital’s response to Ms. Dawson’s request was to call law enforcement. Photographs show Ms. Dawson slumped next to the police car. A police recording captures the tragic end of Ms. Dawson’s life. Officer Tadlock reprimands Ms. Dawson: “Falling down like this and laying down, that’s not going to stop you from going to jail.”
Ms. Dawson’s life ended on the pavement, feet away from the entrance of the hospital that phoned the police on their patient — because she refused to leave. She lay there nearly twenty minutes before being pronounced dead. It turns out she had a blood clot in her lungs.
In some sense, there is nothing extraordinary about the image of Ms. Dawson, or the interactions of the hospital and officer, which further complicates the deadly exchange. Indeed, the interaction was far too normal: Black women fear for their health and safety when they do not seek care and, troublingly, even when they do.
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.