Despite the various progressive health care reforms that have been enacted in the U.S. over the years, one reality has remained the same — racial and ethnic minorities continue to suffer worse health outcomes compared to their white counterparts. The morbidity and mortality contrasts between these groups are stark. In terms of life expectancy, for example, there is a four-year gap between African Americans and whites. The data is even more grim when it comes to maternal health. Black and Native women are two to three times more likely to die from pregnancies than white women. The COVID-19 pandemic has exacerbated these disparities. As data from Centers for Disease Control and Prevention shows, compared to whites, racial and ethnic minorities have experienced higher rates of COVID-19 cases and deaths.
These disparities are not accidental. Rather, they are a product of racial subordination that has long underwritten the structural determinants of health, including health care access and quality. Race is a significant factor in the quality of health care that patients receive. The National Academy of Medicine (NAM) has reported that compared to their white counterparts, racial and ethnic minorities receive poorer quality of care, even when their income status, insurance coverage, and age are comparable. These differences in the quality of care based on race and ethnicity have been attributed, in part, to provider bias — a product of mutually reinforcing mechanisms of structural and interpersonal racism.
At the same time, structural factors create barriers that lead to the underrepresentation of racial and ethnic minorities in the healthcare workforce. Data from the Agency for Healthcare Research and Quality shows that 61.7% of physicians in the U.S. are white, compared to 5.2 % Black and 7.9 Hispanic. Comparable levels of underrepresentation are replicated at different levels in the health care system, including among psychologists, physicians’ assistants, nurses, and paramedics. Provider bias and the underrepresentation of racial in the health care workforce contribute to poor quality of care that minority patients receive.
To address and rectify these health inequities, various policies have been proposed and adopted at different levels of government. Private sector stakeholders have also pursued their own efforts to address health inequities.
Federal Action to Address Health Disparities and Litigation
While there are various systems at the federal level that perpetuate health disparities, the federal government has taken some steps to close some gaps in health. The Affordable Care Act (ACA) has brought major advancements in health equity (albeit incomplete), especially in narrowing racial and ethnic disparities in access to health coverage. The ACA’s achievements have occurred notwithstanding unprecedented legal and political attacks against its implementation, including the refusal of some states to expand Medicaid for low-income adults predominantly from communities of color. Recognizing the need for additional action, President Biden signed an executive order committing to advancing equity in federal programs, including health.
In furthering the executive order’s goals, the Centers for Medicare & Medicaid Services (CMS) finalized a regulation that gives health care providers an option to “create and implement an anti-racism plan,” among other activities. Providers who implement such a plan qualify for certain enhanced payments under Medicare. This activity would include reviewing existing policies to ensure they align with anti-racism principles, including treating race as a social construct rather than a biological one, and creating a plan of action to address any issues found.
A group of states and health care providers immediately challenged the regulation in a federal court in Mississippi, claiming that it violates the Medicare statute. In a brazen argument that evokes race science, the challengers assert that there is no evidence of systemic racism in the U.S. and that disparities in health are due to genetics. The states claim that this rule harms the well-being of their citizens by incentivizing providers to consider race — ultimately decreasing the quality of medical care, a specific interest of states. They also claim that this rule violates state antidiscrimination laws. The providers argue that they will not complete anti-racism plans that would qualify them for enhanced payment, which puts them at a competitive disadvantage.
A federal judge recently dismissed the providers’ claims based on standing, but allowed the states’ claims to continue. If this lawsuit is successful, it will further hamper efforts to adopt meaningful measures to address health disparities.
State Level Litigation Against Diversity Efforts
Efforts to address health inequities at the state level also continue to face mounting litigation. In April 2023, Do No Harm, a Virginia-based interest group, challenged Arkansas’s Minority Healthcare Workforce Diversity Scholarship program. The scholarship was aimed at diversifying Arkansas’s health care workforce to improve the health of minority populations and quality of care in the state. To achieve that goal, the scholarship was open to applicants who represent racial minority populations, defined in state laws as “Black Americans, Hispanic Americans, Asian Americans, and American Indians.” The lawsuit claimed that the scholarship discriminates against white applicants by preferring certain racial minority populations, and denies them the equal protection of the laws. In May 2023, the plaintiff voluntarily dismissed the case after reaching a settlement with Arkansas — the state terminated the scholarship and said that any new scholarship would be “strictly race neutral.” Do No Harm successfully leveraged litigation to achieve their strategic goal — weakening any policy measure or investment to address inequities in health care.
Another lawsuit, George Stewart v. Texas Tech University Health Sciences Center, does not challenge a particular policy, but rather relies on admissions statistics and practices to claim that Texas medical schools engage in impermissible affirmative action. The plaintiff, who was denied admission at six medical schools in Texas, argues that the school discriminates against whites, Asians, and men because the school’s admissions data shows that the median scores of the admitted Black and Latinx students were lower than those of whites and Asians. He bolsters his claim by pointing to an admissions manual from one of the schools outlining that the admissions committee endeavors to admit qualified underrepresented applicants in medicine and disadvantaged applicants. Ultimately, the purpose of the lawsuit is to establish colorblind and gender-neutral admissions policies that would militate against any efforts to diversify the health care workforce.
Other recent litigation highlights potential obstacles to addressing long-standing consequences of structural racism and abuses of racial and ethnic minorities. New York City’s efforts to ensure that communities of color have robust access to COVID-19 treatment have faced multiple lawsuits based on the Equal Protection Clause and federal civil rights statutes. These efforts were tailored to address unique issues affecting communities of color during the pandemic due to structural barriers. But the plaintiffs claim that these efforts are discriminatory. Adopting a colorblind conception of equality, as these lawsuits urge the courts to do, will only entrench the health disparities that characterize the U.S. health system.
Broader Challenges Beyond Health Care
Litigation against health equity efforts is occurring amidst a legal landscape that is on the cusp of a major shift. Following litigation brought against the admissions policies at Harvard College and the University of North Carolina, the Supreme Court is slated to issue a decision shortly that could significantly restrict the ability of public and private academic institutions to consider race in diversifying their student bodies. Those lawsuits use the same non-discrimination and equal protection theories that undergird the cases challenging equity-focused in the healthcare space.
Before the end of this term, the Supreme Court will decide the validity of Indian Child Welfare Act (ICWA), a federal law adopted to remedy recent, well-documented state abuses of Native American families. Enacted to protect Native children from being separated from their parents and communities, ICWA establishes certain placement preferences that apply in child-welfare cases to keep Native children with Native families. White families argue that they are unconstitutionally discriminated against when seeking to adopt or foster Native children. All of this litigation is aimed towards one goal — establishing a color-blind constitutional order that is indifferent to historical and contemporary forms of racial and social subordination.
Racial and ethnic subordination continue to inform disparities in health outcomes in the U.S. Various policy and legal efforts to ensure equal protection of the law and protections against discrimination have yet to deliver equitable health outcomes across different communities. At the same time, nondiscrimination legal principles are continuously being weaponized to stymie even modest efforts to address health disparities. Cases pending before the Supreme Court and the lower courts on these issues portend more serious challenges to future health equity-focused policies.