Academic journal article American Journal of Law & Medicine

Health Disparities and the Law: Wrongs in Search of a Right

Academic journal article American Journal of Law & Medicine

Health Disparities and the Law: Wrongs in Search of a Right

Article excerpt

Healthy People 2010 provides our Nation with the wide range of public health opportunities that exist in the first decade of the 21st century. With 467 objectives in 28 focus areas, Healthy People 2010 will be a tremendously valuable asset . . . . Healthy People 2010 reflects the very best in public health planning-it is comprehensive, it was created by a broad coalition of experts from many sectors, it has been designed to measure progress over time, and, most important, it clearly lays out a series of objectives to bring better health to all people in this country.1

The current responses to the traditional health perils . . . have been weakened. At the same time, it seems to this outsider as though the entire public health establishment is united around the proposition that massive public action should be taken to deal with the new "epidemics," such as obesity and diabetes . . . . But the use of the term "epidemic" is just the wrong way to think about this issue. There are no noncommunicable epidemics . . . . Yet the designation [of] obesity as a public health epidemic is designed to signal that state coercion is appropriate . . . .2


Are there disparities in health? The answer seems obvious on a personal scale-we each know people who are healthier and sicker than we are. Yet these differences in health status are not distributed entirely randomly throughout society. A number of categorical factors-gender, class, age, ethnicity/race, to name a few-are associated with differences in health status.3 The federal government and the Institute of Medicine (IOM) are among the prestigious groups to agree that disparities in health status are real and that at least some types of health disparities require action by various groups in society.4

What is the proper role of law in addressing health disparities? To the optimistic drafters of the federal government's massive Healthy People 2010 project, law is one of a range of "interventions" that might be used to "increase the quality and years of health life" and to "eliminate health disparities."5 To the skeptics, health disparities are the product of many social and economic forces, only some of which can and should be the focus of direct legal intervention.6 Further expansion of the domain of public health might undermine and weaken governmental focus on core public health functions.7

This Article will explore the promise and limits of law in addressing disparities in health. Part II explores the research detailing disparities in treatment, outcomes and health status associated with gender, ethnicity/race and socioeconomics. Part II also explores the determinants of health: which factors actually influence health status? Part II concludes that socioeconomic and behavioral factors appear to have a large impact on health status.

In Part III, this Article evaluates the proper scope of public health interventions to reduce disparities in health status. The approach taken in the federal government's Healthy People 2010 document will serve as a guide to reviewing the utility and appropriateness of legal interventions to reduce disparities in health. Most health law scholars have focused on the problem of access to healthcare. Yet, access to care accounts for a relatively small percentage of a person's health status. Health law scholars have given less attention to whether law can and should be used to address some of the socioeconomic and behavioral determinants of health status. Part III considers the utility of law in addressing determinants of health status in two general areas derived from the Healthy People 2010 framework: "behavioral" health risks and socioeconomic status. The use of the legal system to affect behavioral health risks such as those involving tobacco, HIV and obesity can be controversial. Part III ends with consideration of the risks and benefits of what would be the most radical use of law to affect one of the major determinants of health status: socioeconomics. …

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