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...reflects very best 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)
I. INTRODUCTION
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.
Part IV concludes that there are great risks to retaining a narrow definition of public health and public health interventions. Among other things, a narrow conception of public health will make it more difficult for society to address serious problems that have a major impact on health status. Part IV concludes that there is little public or governmental support for a more expansive conception of public health. Interventions into behavioral risk factors for poor health status often are stymied by the competing paradigm of personal responsibility. Socioeconomic factors are even less likely to be considered the proper domain of regulation. Health status disparities thus are likely to remain a wrong in search of a right.
II. DISPARITIES IN HEALTH STATUS
A. HEALTH DISPARITIES
Researchers have explored three major types of related disparities in health. The first type of disparity involves differences in the type and intensity of treatments offered to patients. Socioeconomic factors clearly can have an impact on access to care as an initial matter, as well as on the treatment ultimately offered and accepted by a patient. (8) Yet, disparities in treatment go beyond socioeconomics. (9) Many studies find race-based differences in medical treatment. African-Americans in particular are less likely to receive medically appropriate care than whites, even when controlling for socioeconomic status and access to care. (10) Some studies also appear to demonstrate gender-related disparities in treatment. (11)
The second set of research studies focuses on differences in health outcomes for particular conditions. (12) Studies which include both outcome and treatment are important because they can be used to demonstrate that differential treatment produces poorer health outcomes in some groups. (13) In one study of cardiac care and five-year mortality rates, for example, African-Americans were less likely to receive appropriate treatment and were eighteen percent more likely to die than whites, (14) Other studies demonstrate that African-American women are less likely to receive appropriate treatment for breast cancer and are more likely to die from the disease. (15) Children who are black or poor are more likely to experience morbidity associated with asthma. (16) Not all disparities in outcome are evidence of wrongdoing, some reflect other factors, such as biology. (17)
The third set of research projects focuses on disparities in health status, such as differences in life expectancy and rates of particular diseases. Health status is strongly related to gender: "men have a life expectancy that is 6 years less than that of women and have higher death rates for each of the 10 leading causes of death." (18) There are also very strong racial and ethnic disparities in health status which are not explained by genetic or biological variation. (19) These racial and ethnic disparities are reflected in the life expectancy data. A black child born in 2000 has a life expectancy of 71.7 years compared to a life expectancy of 77.4 for a white child. (20) The disparities become even greater when disaggregated by gender: black male babies have a life expectancy of 68.2, compared to a life expectancy of 74.8 for white boys, 74.9 for black girls and 80.0 for white girls. (21)
As one might expect, given these significant disparities in life expectancy, there are also important disparities in the prevalence of particular diseases and in the rate of death from different conditions. The reduced life expectancy for African-Americans compared to whites is the result of the greater prevalence of some "early taker" diseases, (22) as well as higher rates of mortality for shared conditions. (23) Indeed, death rates for various conditions are significantly higher for African-Americans, (24) Hispanics (25) and American Indian/Alaska Natives. (26) While Asian-Americans typically have lower death rates than whites, there are pockets of greater risk. (27) Hispanics are more likely to suffer from high blood pressure, obesity and diabetes than non-Hispanic whites. (28) Another example of a dramatic disparity involves kidney disease: "African, Hispanic, and Native Americans have the highest risks of end-stage renal disease," and African-Americans have the worst outcomes. (29)
The data detailing disparities in health status are stark and very troubling. This would be the case even if they did not run the fault lines of what we already know to be persistent patterns of discrimination and disadvantage in society. That disparities in health status mirror patterns of historical discrimination in society is at least cause for alarm, and perhaps for action as well. But first, policy-makers must understand the causes of healthiness or unhealthiness in society.
B. DETERMINANTS OF HEALTH
What causes one population to be healthier than another? Public health officials and medical researchers have generated a considerable body of literature on the "determinants of health." (30) The reflexive answer is that health is determined by access to healthcare--populations which have access to healthcare should therefore be healthier than those without. This answer turns out to be only partially true because health status depends only in part on access to healthcare. (31) One estimate is that access to care accounts only for about ten percent of the health status of populations. (32)
Other factors have a much greater impact on health status. According to the U.S. Department of Health and Human Services (HHS), "individual behaviors and environmental factors are responsible for about 70 percent of all premature deaths in the United States." (33) Another related estimate is that health behaviors may account for fifty percent of health status, with environment accounting for twenty percent, and genetics another twenty percent. (34) The importance of these and other factors is underscored in the Department's pictorial representation of the determinants of health,...
NOTE: All illustrations and photos
have been removed from this article.
More articles from American Journal of Law & Medicine
Medical care as a public accommodation: moving the discussion to race., June 22, 2003
Achieving equality: healthcare governance in transition., June 22, 2003
Select recent court decisions., June 22, 2003
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