Unfinished Agenda: The Need for Civil Right Litigation to Address Race Discrimination and Inequalities in Health Care Delivery

Article excerpt

I. Introduction

From Central Harlem to rural Alabama, poor communities of color are exposed to great health hazards and experience high incidences of many chronic and acute health conditions, but have access to relatively few health services. The consequences are devastating: high rates of infant mortality and morbidity due to childhood asthma, delayed care, and, ultimately, shorter life spans. This article argues that civil rights litigation could play a vital role in battling continuing patterns of discrimination in the provision of health care and the lack of access to care experienced by many low-income African Americans. Moreover, the current transformation of health care financing and delivery systems presents unique opportunities for intervention and legal challenge now, before historical practices replicate themselves and become entrenched in the new health care industry.

In the campaign for greater equity in the financing and provision of health care services, is there a need for litigation? What role would litigation play? Before reaching these questions, this article will first outline the need for civil rights enforcement in the health care sector. Disparities in access to health care are centuries old but continue to threaten quality and longevity of life for many African Americans. Further, virtually unchecked patterns of discrimination on the basis of race and ethnicity by medical personnel and facilities send a strong message about how we, as a society, value the lives of poor people of color. A mother who cannot find a pediatrician in the neighborhood to examine her child,1 the person living with HIV/AIDS who cannot afford costly medication,2 and the patient on a hospital's public ward who learns to shut off his own IV because the bag is empty and no hospital personnel will respond to his calls,3 each understands the meaning of the message. The disparities are all the more amoral in a society that spends fourteen percent of its gross domestic product on health care, the majority of which is paid for by the public purse.4

Next, the article will turn to a historical perspective of legal advocacy and civil rights enforcement in the distribution of the health care services. Although civil rights advocacy in the health care area has been limited, in comparison to advocacy concerning discrimination in the areas of employment, housing and education, health care cases and advocacy have made a difference. Litigation puts issues on the table that are otherwise neglected. Although civil rights litigators have some key allies (including, most notably, the National Health Law Program, as well as lawyers from legal service organizations and the private bar, and many national and community based organizations), there is no organized civil rights health care bar to carry the ball.

Lastly, the discussion will focus on areas for litigation and advocacy, suggesting three possible priorities, specifically:

1. Administrative advocacy to build mechanisms for civil rights enforcement;

2. Impact litigation to challenge redlining and other discriminatory practices engaged in by managed care organizations;

3. The development of new models of litigation to create and sustain medical infrastructure in underserved areas.

By way of qualification, it should be noted that this article does not provide full treatment of the legal grounds for each area of potential litigation. Readers interested in more discussion of specific legal claims can avail themselves of materials and analyses available elsewhere.5

11. Racial Disparities in the Distribution of Health Services and the Need for Civil Rights Enforcement

In the early 1990s, civil rights advocates, health care researchers, medical professionals, and representatives from an array of government agencies, community based organizations, and law schools gathered to explore access to health care as a civil rights issue and to chart a course for litigation and activism. …