Category Archives: Health

New Article: “Closing the Health Justice Gap: Access to Justice in Furtherance of Health Equity”

New Article: Yael Cannon, Closing the Health Justice Gap: Access to Justice in Furtherance of Health Equity, 53 Colum. Hum. Rts. L. Rev. 517 (2022). Abstract below:

A massive civil “justice gap” plagues the United States. Every day, low-income Americans—and disproportionately people of color—go without the legal information and representation they need to enforce their rights. This can cost them their homes, jobs, food security, or children. But unmet civil legal needs in housing, employment, and public benefits, for example, are not simply injustices—they are well-documented drivers of poor health, or social determinants of health. Those marginalized by virtue of both race and socioeconomic status are particularly harmed by inaccessibility to justice and also by chronic health conditions and lower life expectancy. When a tenant walks into court alone for an eviction hearing and faces an experienced landlord’s attorney, the tenant is unlikely to prevail, and her eviction can lead to myriad poor health outcomes.

The health justice movement leverages law and policy to advance health equity. In recent years, it has gained tremendous traction, especially due to the COVID-19 pandemic’s spotlight on health disparities. In tandem, the access to justice movement is progressing with the advancement of major federal, state, and local legislation and initiatives. However, the movements have been running on parallel tracks, and their connections have been under-examined. This Article puts the two movements and bodies of scholarship squarely in dialogue with one another.

New Article: Abortion Privilege

New Article: Ederlina Co, Abortion Privilege, 74 Rutgers L. Rev. 1 (2021). Abstract below:

This Article launches a critical dialogue about the abortion privilege. On the one hand, most abortion patients are low income or live below the poverty line and are disproportionately women of color. Many of these patients encounter multiple restrictions on abortion and must travel lengthy distances to abortion care facilities. These patients take center stage in abortion rights cases and in abortion rights discourse. On the other hand, there is a smaller but not insignificant group of abortion patients for whom abortion care is paid for by private or public health insurance or available out-of-pocket funds. Many of these patients live in states where abortion is unrestricted, and abortion care facilities are accessible often in the county in which they live. These patients experience abortion as a form of ordinary health care and rarely show up in abortion rights cases and abortion rights discourse. They have the abortion privilege.

This Article reveals the abortion privilege and contends that its recognition and thoughtful incorporation into abortion rights law and discourse could help redistribute the oppressive load women without the same privilege carry in connection with the right and help shore up the abortion right. First, demonstrating widespread reliance on abortion, including by women with the abortion privilege, is crucial to the stare decisis argument to uphold Roe v. Wade. Demonstrating widespread reliance on abortion would also help reduce the abortion stigma, which is both harmful to women and makes demonstrating widespread reliance on abortion so difficult in the first place. Second, the abortion debate and abortion itself has changed, but women’s experience with abortion as a form of ordinary health care has not surfaced as part of the public narrative about abortion. Such a narrative demonstrates that abortion is like other medical procedures and confirms that women have the knowledge to decide the outcome of their pregnancies without state intervention. Although not everyone may be willing to see abortion as ordinary health care today, they may be open to seeing it that way in the future if we begin to tell that story. Finally, as equality re-emerges as a prominent theme in legal and political arguments in support of the abortion right, to advance that argument with integrity and to coalesce a base of support around it, there must be concerted efforts within the abortion rights movement to acknowledge and reckon with the inequalities among women who make the abortion decision. The abortion privilege framework is designed to recognize these inequalities and prompt efforts to equalize them. In addition, the framework is designed to preempt the deprioritization of women without the same privilege and make clear to privilege holders that the abortion privilege perpetuates their inequality, too.

New Article: “Kinder Solutions to an Unkind Approach: Supporting Impoverished and Ill Parents Under North Carolina’s Filial Responsibility Law”

New Article: Karen L. Sheng, Kinder Solutions to an Unkind Approach: Supporting Impoverished and Ill Parents Under North Carolina’s Filial Responsibility Law, 71 Duke L.J. 209 (2021). Abstract below:

The United States is caught in the crosshairs of skyrocketing healthcare costs and a rapidly aging population. Families are buckling under the weight of supporting and caring for aging relatives, especially with the exorbitant costs of long-term care facilities, hospitalization, and chronic illness management. Although the government provides support through programs like Medicare and Medicaid, adult children, acting on an emotional impetus to support parents, often have to organize that support. They may even have a legal duty in over half of the states. These filial responsibility laws impose a duty on adult children to support their parents who cannot otherwise support themselves.

North Carolina is one of these states. State law holds that it is a misdemeanor, punishable by up to a year in jail, for an adult child to fail to support an ill or indigent parent. Much of the scholarship in this
space has agreed that filial responsibility laws are inequitable and inefficient, but none have proposed solutions to achieve what these laws originally set out to do. Focusing on aging and poor people in North Carolina, this Note proposes three state-level, nonpartisan ideas to reform the landscape of elder care, providing families with more tools to support the ones they love and cherish. The North Carolina General Assembly should: (1) require employers that offer health insurance with dependent coverage to offer coverage of an employee’s uninsured parents; (2) establish a reciprocal beneficiary status that conveys certain rights and responsibilities to parent-child caretaking relationships; and (3) expand Medicaid eligibility under the Affordable Care Act.

New Article: “Towards Racial Justice: The Role of Medical-Legal Partnerships”

New Article: Medha D. Makhlouf, Towards Racial Justice: The Role of Medical-Legal Partnerships, 50 J.L. Med. & Ethics (Forthcoming 2022). Abstract below:

Medical-legal partnerships (MLPs) integrate knowledge and practices from law and health care in pursuit of health equity. However, the MLP movement has not reached its full potential to address racial health inequities, in part because its original framing was not explicitly race conscious. This article aims to stimulate discussion of the role of MLPs in racial justice. It calls for MLPs to name racism as a social determinant of health and to examine how racism may operate in the field. This work sets the stage for the next step: operationalizing racial justice in the MLP model, research, and practice.

New Article: Medicare for All, Health Justice, and the Laboratories of Democracy

New Article: Elenore Wade, Medicare for All, Health Justice, and the Laboratories of Democracy, Georgetown Journal on Poverty Law Policy, Forthcoming. Abstract below:

A growing majority of Americans support the implementation of a national single-payer healthcare program, also known as Medicare for All, which would shift payments for healthcare services to a single public payer and provide care based on need rather than ability to pay. However, legislators, scholars, and advocates have suggested state governments rather than the federal government should take the lead by implementing state-based single-payer programs. Dozens of single-payer proposals have been introduced in state legislatures across the country, and proposed legislation in Congress would remove the federal roadblocks to state-based single-payer’s implementation. Proponents of state-based single-payer rely on the conventional wisdom that states—as the storied “laboratories of democracy”—can prove the concept of single-payer to other states, who will adopt it in time.

But, in taking the “laboratories of democracy” theory at face value, advocates of state-based single-payer ignore a number of realities fatal to the assumption that universal healthcare will come from the states. This Article argues state-based single-payer is not a stepping stone to health justice or the implementation of national single-payer and that it is, rather, a stumbling block that will worsen health inequities in the United States and ultimately make the implementation of a national single-payer system even less likely than it is now. In order to demonstrate this, I analyze the history of state government experimentation in healthcare to conclude the laboratories of democracy theory has been tested in the healthcare domain and failed, harming the nation’s most vulnerable and historically oppressed people. Using the example of the Affordable Care Act Medicaid expansion, I discuss the historic and present antidemocratic state government resistance to programs that promote health justice, particularly when those programs would increase healthcare access for poor people and people of color. Furthermore, I employ a political theory analysis to conclude state-based single-payer is not an acceptable policy for the federal government to promote under a health justice framework. This is because the implementation of state-specific single-payer programs will worsen health disparities by weakening the bargaining power of existing federal programs such as Medicare and Medicaid and by fracturing a growing constituency in favor of single-payer, chilling popular momentum toward a national single-payer program.

New Article: Race and Medical Double-Binds

New Article: Craig Konnoth, Race and Medical Double-Binds, Colum. L. Rev. Forum (2021). Abstract Below:

Race and medicine scholarship is beset by a conundrum. On one hand, some racial justice scholars and advocates frame the harms that racial minorities experience through a medical lens. Poverty and home­lessness are social determinants of health that medical frameworks should account for. Racism itself is a public health threat. On the other hand, other scholars treat medicine with skepticism. Medical frameworks, they argue, will reify racially charged narratives of biological inferiority. This Piece affirmatively claims that the debate is unresolvable. Rather, the re­lationship between race and medicine should be conceptualized as a double-bind, a concept that creates space for mutually contradictory claims. Indeed, such contradictions are a feature of a double-bind such that the harm a minority faces is intensified. This understanding also breaks ground for antidiscrimination scholarship more generally, which histori­cally has assumed that prominent double-bind frameworks do not apply to racial minorities. Accu­rately mapping all sides of the conceptual space that race and medi­cine advocacy scholarship occupies creates space for future work to think of ways in which to resolve the double-bind.

New Article: The American Workplace Isn’t Prepared for This Much Grief

New Article: Chad Broughton, The American Workplace Isn’t Prepared for This Much Grief, The Atlantic (Nov. 2, 2021).

The pandemic has highlighted the fact that without a federal bereavement policy, many people are subject to the whims of state legislatures and individual companies.

New Article: Chosen Family, Care, and the Workplace

New Article: Deborah A. Widiss, Chosen Family, Care, and the Workplace, forthcoming Yale L. J. Forum. Abstract below:

Fewer than twenty percent of American households consist of a traditional nuclear family—a married couple living together with their shared children. Couples routinely live together without marrying, blended and multigenerational families are increasingly common, and many adults, including a sizeable share of senior citizens, live alone. It is therefore not surprising that employees often request time off work to care for the medical needs of loved ones who are part of their extended or chosen family.

Until recently, most workers would not have had any legal right to take such leave. A rapidly growing number of state laws, however, not only guarantee paid time off for family health needs but also adopt innovative and expansive definitions of eligible family. Several provide leave to care for intimate partners without requiring legal formalization of the relationship and they also explicitly cover a broad range of extended family. Some go further to include any individual who has a relationship with the employee that is “like” or “equivalent to” a family relationship. Still others employ a functional approach that simply asks whether a sick individual depends on the employee for care.

This Essay provides the first detailed analysis of inclusive definitions of family enacted in state paid leave laws, as well as similar language in proposed federal legislation. It argues that providing workers the autonomy to define their own concept of family is essential, given varied makeup of modern families. A flexible standard is especially important for people of color and the LGBTQ+ community, whose care networks are particularly likely to extend beyond the boundaries of the nuclear family.

Such flexibility, however, can pose administrative challenges. The laws will only achieve their purpose if both public and private personnel implementing them understand the broad scope of coverage and take steps to ensure that employees whose families depart from traditional norms are protected from workplace discrimination. This Essay identifies potential obstacles to effective implementation and suggests strategies for addressing them.

New Article: Brains Without Money: Poverty as Disabling

New Article: Emily R. Murphy, Brains Without Money: Poverty as Disabling, forthcoming Conn. L. Rev. Abstract below:

The United States has long treated poverty and disability as separate legal categories, a division grounded in widespread assumptions about the “deserving” and “undeserving” poor. In the case of disability, individuals are generally not thought to be morally responsible for their disadvantage, whereas in the case of poverty, disadvantage is assumed to be the fault of the individual, who is therefore less deserving of aid. This Article argues, however, that recent advances in brain and behavioral science undermine the factual basis for those assumptions. Poverty inhibits brain development during childhood and, later in life, adversely affects cognitive capacities that are key to decision-making and long-term planning. The science of scarcity is complex and ongoing, but its most basic finding is quickly approaching consensus: poverty’s effects in the brain can be disabling.

This Article argues that understanding poverty as disabling has potentially significant implications for policy and doctrine. Viewing poverty as disabling would provide support for poverty programs with less sludge and more money: proposals such as universal basic income, negative income tax, child grants, and greatly simplified benefits determinations. It also reanimates insertion of social welfare concerns into the dominant civil rights framework for disability policy, and could resolve longstanding tensions between disjointed federal disability laws. In addition, brain and behavioral science may support litigation strategies to compel accessibility to existing systems and potentially help promote a new public understanding of the causes of poverty.

The Article concludes by considering the potential (and significant) downsides of using the lens of science in service of policy: backlash, misunderstanding, and the fragility of relying on nascent science to support fundamentally normative policy goals. One necessary mitigation strategy involves the careful translation of science, including its limitations and residual uncertainties, into legal scholarship, an approach this Article attempts to both model and articulate.

New Article: Setting the Health Justice Agenda: Addressing Health Inequity & Injustice in the Post-Pandemic Clinic

New Article: Emily A. Benfer, James Bhandary-Alexander, Yael Cannon, Medha D. Makhlouf, and Tomar Pierson-Brown, Setting the Health Justice Agenda: Addressing Health Inequity & Injustice in the Post-Pandemic Clinic, Clinical Law Review, Forthcoming, Fall 2021. Abstract below:

Among the tenets of clinical legal pedagogy is the goal of teaching students about the lawyer’s role in both ensuring the quality of and access to justice for historically marginalized populations. The COVID-19 pandemic illustrated how, for far too many, justice is inaccessible, inequity is rapidly increasing, and health justice is out of reach. Historically marginalized groups experienced disproportionate infection and mortality rates from COVID-19, as well as the highest rates of unemployment, barriers to healthcare access, food insecurity, and extreme eviction risk during the pandemic. These disparities stem from the social determinants of health . Social determinants of health “encompass[] the full set of social conditions in which people live and work,” and drive health inequity for people living in poverty, people of color, and other historically marginalized groups. Structural determinants of health, including the political and legal systems in which discrimination can become embedded, influence poor health outcomes. No other profession bears more responsibility for the role of law in lifting or oppressing members of society. It is upon the legal profession to uncover how the law, laden with bias and discrimination, can operate as a vehicle of subordination, creating barriers to opportunity, long-term hardship, and poor health. The pandemic-related increase in the need for legal services highlighted the urgency of not only providing the next generation of lawyers with foundational lawyering skills, but also imbuing them with a sense of legal stewardship. In this way, the pandemic underscored the need for clinical legal education to adopt strategies that both increase lawyering skills and directly address the structural determinants at the root of the justice crisis.

Health justice is the eradication of unjust health disparities caused by discrimination and poverty. The health justice framework provides a model for training students to recognize the structural and intermediary determinants of health at the root of their clients’ hardship, and to actively work with the community to address barriers to health equity and social justice. The authors have used the health justice framework to conceptualize and explain the work of MLPs. The framework is centered on engaging, elevating, and increasing the power of historically marginalized populations to address structural and systemic barriers to health, as well as to compel the adoption of rights, protections, and supports necessary to the achievement of health justice. In the law clinic setting, health justice offers a holistic, interprofessional, and proactive approach to addressing social injustice. It teaches students to investigate the roots of their clients’ legal crises and to identify leverage points to shift the deeply connected health disparities and injustices that plague marginalized communities. A holistic understanding of social injustice and health inequity prepares students to seize those opportunities for leverage and to develop proactive—rather than reactive—legal interventions to address potential health crises.

This Article arose from a discussion of five clinicians who, combined, have over three decades of experience designing and working in medical-legal partnerships (MLPs) to address health-harming legal needs for low-income and historically marginalized patients. The Article provides our reflections on the successes and challenges of the MLP model in achieving health justice during the COVID-19 pandemic. Part I describes the relationship between structural injustice and the health impacts of the pandemic. It also describes individual-level responses to these crises that have largely failed to protect the populations that are widely considered marginalized in U.S. society, and the role of legal interventions in combatting racial health inequity. Part II explains how MLPs employ a health justice framework to address “wicked problems” at the intersection of law, health, race, and poverty. Part III proposes maxims for achieving health justice for law clinics generally, drawn from the authors’ experiences over the past fourteen months.

We believe that the health justice framework and our reflections could be useful to all clinicians because of the relationship between unmet legal needs and poor health: When clinics intervene to help clients address financial or food insecurity, unstable or unsafe housing, employment discrimination, inadequate educational supports, immigration issues, and interpersonal or community violence, among other legal needs, we address SDOH. Because we are, in a sense, all working for health justice, this framework may provide helpful insights to clinicians working across a range of legal issues. In the midst of the global COVID-19 pandemic, the link between health justice and access to justice is clearer and more salient than ever before.