Disparities in health outcomes and access to care are pervasive across the United States, particularly for racial and ethnic minorities who experience higher rates of illness and death across a broad spectrum of health conditions. In addition to this greater burden of disease, communities of color have limited access to care and health insurance coverage, compounding the problem. These inequities flow from historic subordination and modern discrimination against minority groups.
Many groups, spanning the public and private sector, are working to address these disparities through programs that direct resources and opportunities to address these health disparities. These initiatives include outreach and treatment programs focused on minority patients, fostering diversity in medical leadership, and addressing provider bias.
Recent Challenges to Equity Programs
Despite clear evidence of historical discrimination and demonstrated successes of equity programs in addressing gaps, these programs are popular targets for legal challenges by interest groups advocating for a “colorblind” approach. These groups have targeted equity policies across the country, including race-conscious admissions in higher education, and have found a receptive audience at the highest levels of the judicial system.
Last year, the Supreme Court ruled in Students for Fair Admissions v. Harvard, that admissions processes that consider race are unconstitutional. The case challenged long-standing affirmative action policies that considered an applicant’s race, among other factors, in higher education admissions decisions to increase student diversity.
The Students for Fair Admissions decision followed a series of Supreme Court cases that have scuttled efforts to address disparities in other social determinants of health, including employment, housing, voting, K-12 education.
Lower courts have been following suit. This year in American Alliance for Equal Rights v. Fearless Fund, the Eleventh Circuit struck down a grant contest designed to elevate Black women in venture capital. Deploying a colorblind approach that decontextualized civil rights laws, the court characterized this effort to alleviate the challenges faced by Black women venture capital as “race-exclusionary” and, thus, discriminatory under the Civil Rights Act.
Challenges to equity policies like these often repackage and weaponize the language and strategies historically used by civil rights advocates to attack the laws that the advocates worked hard to establish. Modern challenges to equity programs often invoke the Fourteenth Amendment’s Equal Protection Clause, which was passed to ensure formerly enslaved people were given full rights of citizenship. Challengers have also relied on the doctrine of “associational standing,” which allows organizations to bring cases on behalf of their members, to get their proverbial feet in courtroom doors.
This strategy, first employed by the NAACP to challenge an Alabama law that had been used to discriminate against a business because of its involvement in Montgomery Bus Boycott, was instrumental in the advancement of civil rights through the courts. Now interest groups are using this doctrine to access the courts and roll back equity-focused policies in the courts.
Standing Doctrine Can Limit the Reach of These Challenges
Federal courts have limited jurisdiction—they may only hear “cases and controversies — not any debate brought before them. The parties involved in the case must have some skin in the game, a requirement known as “standing.” For a person to have standing, they must have been (or be likely to be) injured by the challenged action. The harm must be concrete and particularized: it cannot be speculative. It must also have actually occurred or be imminent, not a potential future harm. If a person bringing a case does not have standing, the court must dismiss the case, and cannot rule on the underlying merits of the case, regardless of the court’s view of the outcome.
Because many of the lawsuits challenging equity-focused policies have been filed by interest groups, not individuals who were specifically harmed, these parties have struggled to establish standing. Therefore, several courts have thrown out the cases without reaching the merits. Rulings in recent cases give insight into how standing requirements may limit the use of litigation as a strategy to prevent health equity initiatives.
During the COVID-19 pandemic, two individuals challenged a New York state guidance on the prioritization of antiviral treatments for at-risk populations. Under the guidance, race and ethnicity were to be considered risk factors, based on evidence of higher exposure rates and worse outcomes experienced by communities of color due to “longstanding systemic health and social inequities” that “increased risk of severe illness and death from COVID-19.” The plaintiffs argued that the use of race or ethnicity as a factor in determining treatment prioritization was discriminatory, denied them equal access to the medications, and increased their risk of adverse outcomes. The courts rejected these claims on standing grounds. The courts reasoned that the chain of events needed for the plaintiffs to suffer harm—contracting COVID-19, being eligible for treatment, a treatment shortage, and denial of care because of race—was too attenuated to establish standing. Because the plaintiffs could not show that this guidance would ever harm them, the court declined to hear the case.
In two recent cases, Do No Harm, an organization focused on fighting equity-focused policies, challenged programs aimed at increasing representation in high levels of the medical field — specifically, a diversity leadership fellowship program for a major pharmaceutical company and a state medical board with a mandate to have at least one minority member. In both cases, the courts found that the organization lacked standing because it failed to show that their members were actually harmed. Despite efforts to construct a membership that could be harmed by the equity focus of these programs, the courts found that they fell short of showing their members had actually been denied, or would imminently be denied, opportunities based on their race.
In 2022, a healthcare provider and a group of states sued the federal government over a regulation that gave providers the option to “create and implement an anti-racism plan” as one of their quality improvement activities to receive a payment enhancement from Medicare. The provider argued that she was harmed by this policy because she objected to implementing an anti-racism plan, and this plan would reduce her payments, putting her at a competitive disadvantage relative to other providers who would implement the plan. The court rejected the provider’ standing arguments because there are many other activities that she could undertake to receive full credit for the Medicare payment enhancement. Moreover, the provider failed to show that other providers would complete the antiracism plan, thus putting her at disadvantage for not doing the same. Because the provider could not show she was concretely harmed by the policy, the court dismissed the individual plaintiffs from the case. The states’ claims, however, established standing, and the case continues as Mississippi v. Becerra.
Litigation Can Still Frustrate Equity Programs
Even when a case may be thrown out by the court on standing, the threat of litigation and the prospect of an expensive legal battle or negative publicity can chill equity efforts. In several recent challenges to equity programs, ranging from diversity fellowships at law firms to bonuses to attract Black physicians, the defendants have settled and ended their programs rather than proceed, even if the plaintiffs may have been unable to move forward in court due to lack of standing.
Some sympathetic courts may also find creative ways to skirt standing claims and reach the merits of these cases. s noted earlier, in American Alliance for Equal Rights v. Fearless Fund, the Eleventh Circuit recently invalidated a program aimed at helping Black women in overcoming barriers in venture capital. At issue in Fearless Fund was a contest that awarded four winners “$20,000 a piece and digital tools to assist with business growth, as well as mentorship.” To participate in the contest, a business had to be “at least 51% Black-woman owned.” The contest was aimed at addressing the stark disparities in venture capital, where Black women hold “only 1% of investment partner positions in 2022.” American Alliance for Equal Rights (Alliance) challenged the contest, arguing that the law discriminated based on race and therefore violated civil rights laws. Alliance is headed by Edward Blum, who has also spearheaded several race-conscious policies, including Students for Fair Admissions.
To get around standing, Alliance used a creative tactic — pseudonymously named members. Alliance claimed that its mystery, undisclosed members—named as owners A, B, and C—who weren’t Black women, were harmed because they couldn’t participate in the contest even though they were “able and ready” to participate. In short, Alliance did not even have to disclose the identities of its members that it claimed had been racially excluded. Still, the court found this sufficient to establish standing. To the court, the undisclosed members’ claim that they were “able and ready” to participate in the contest was enough to proceed because they were likely to apply for the contest from which they were excluded.
The court’s readiness to find standing in Fearless Fund was strongly criticized by the dissenting judge, who characterized Alliance’s claim of harm as “flopping” in soccer, a tactic by which a player fakes a foul to get an undeserved penalty. The dissent noted that Alliance didn’t have “a genuine interest”; rather, it simply feigned injury just to get its foot in the courtroom’s door, just like a “flopper” would in a sports contest.
Fearless Fund shows how judicial solicitude for standing allows spurious claims of injury to defeat health- and equity-focused policies. In Alliance for Hippocratic Medicine v. FDA, for example, despite the tenuous claims made by a group of doctors about how they were harmed by the FDA’s approval of abortion medication, both lower courts found standing and rolled back FDA’s action. A unanimous Supreme Court, however, reversed that decision, after finding that the doctors had suffered no injury.
This issue is compounded by forum shopping, a strategy used by sophisticated litigants to bring their cases in the most sympathetic courts. In Alliance for Hippocratic Medicine v. FDA, for example, the case was brought in the Amarillo Division of the Northern District of Texas, where it was guaranteed to be heard before Judge Kacsmaryk, who had a history of opposition to abortion rights.
Conclusion
Courts play a critical role in shaping health policy, but because the courts’ role in shaping health policy has to go through an adversarial legal process, some litigation challenging health policy has been kept at bay on standing grounds. Still, challengers have been finding creative ways around this doctrine, including appropriation of associational standing and forum shopping. In some cases, the threat of litigation—even without getting to the threshold question of standing—has been enough to roll back equity policies or chill those efforts.
