The 2021 Northeastern University Law Review (“NULR”) Symposium (“the Symposium”), entitled “The Many Faces of Health,” addressed the multidisciplinary intersection of systemic racism, public health, and the current COVID-19 pandemic. Laudable professionals from across the globe were featured at the event to discuss various facets of the public and private systems that have led to both the creation and maintenance of inequity within the United States. Out of these discussions emerged common themes, including the public’s right to the data and information collected by publicly funded institutions and programs. However, the most dominant theme was the importance of both procedural and distributive justice in abating inequity and discriminatory practices.
Daniel E. Dawes, the Executive Director of the Satcher Health Leadership Institute at Morehouse School of Medicine, and keynote speaker for the Symposium, initiated a discussion on actions he believes will elevate health equity in the United States if performed and upheld simultaneously. The first of these actions is to engage in conversations about discrimination and privilege and to actively advocate for policies that address these inequities. Dawes elaborated that all forms of discrimination, including racism, sexism, and ableism, find their origins in inequity. Inequities can prevail in many forms and are generally considered in terms of structural determinants—such as social and political determinants—that influence one’s life, but are largely beyond personal control.
Social determinants comprise the systemic components of one’s life such as education level, income, and the physical environment, whereas political determinants are the legal foundations that contributed to the creation of social determinants. In terms of the current COVID-19 pandemic, Dawes noted that the interplay of these determinants is illustrated through disparities in areas such as health literacy, accessibility and affordability of various forms of transportation, and health outcomes from contracting COVID-19.
Addressing past policies that have fostered structural forms of discrimination involves researching community histories, according to Dawes. For example, the Home Owners’ Loan Corporation (“HOLC”), created by the Home Owners’ Loan Act of 1933, was the agency responsible for the practice of redlining, which classified certain neighborhoods according to the risk of granting loans. The effects of redlining still negatively impact the economies and health of predominately Black neighborhoods today, as such communities were unjustly considered at the highest risk of not being able to reconcile loans. Predominately white neighborhoods, in turn, were deemed low risk. In the present day, these classifications correlate to predominately Black communities experiencing a higher risk for health conditions such as COVID-19 and diabetes. Dawes noted that practicing procedural justice by elevating marginalized peoples from positions of oppression to power can be an effective approach (especially with regard to women) that strengthens networks and can improve health equity when combined with education, advocacy, and policy reconstruction.
One aspect of health equity concerns the accessibility and affordability of medical treatments, which was discussed in the first panel of the day: “The Balancing Act: Intellectual Property Rights and the Right to Access Medicine.” The conversation circulated around the fact that the current pharmaceutical production and distribution systems in the United States (notably, in the diabetes context) are failing to effectively meet the needs of our citizens due to the profit-driven market. Despite the low cost of production for a plethora of medications, the price at the point of sale to the consumer is disproportionately high due to a general lack of competition and price control.
Merith Basey, the Executive Director at Universities Allied for Essential Medicines (“UAEM”), North America, reminded us of a similar phenomenon at the beginning of the HIV/AIDS epidemic. Treatment regimens of azidothymidine (“AZT”) were created by researchers funded by the National Institute of Health in 1964, but were financially inaccessible by the populations most at risk and most negatively impacted by the epidemic. However, widespread advocacy by healthcare providers, lawyers, and members of the LGBTQ+ community led to the creation of a nonexclusive license for the medicines, which allowed for expanded production and a dramatic decrease in cost.
To replicate these results, Basey and Ellen ‘t Hoen, Director of Medicines Law & Policy and a Global Health Law Fellow at University of Groningen, Netherlands, emphasized changing the conditions for publicly funded research, institutions, and programs. They argued that since medications and technologies are brought to fruition by citizens’ tax dollars, the patents for such innovations should be made more publicly available. Jorge Contreras, Professor of Law at the University of Utah S.J. Quinney College of Law, also highlighted the establishment of open innovation landscapes, like the Open Covid Pledge, that create an opportunity for the sharing of intellectual property for emergency response purposes.
Though the common misconception is that the inequitable allocation of medical resources mainly occurs between high-income and low-income countries, this issue persists within the United States itself. Ruqaiijah Yearby, Professor of Law at Saint Louis University School of Law and Executive Director and Co-Founder of The Institute for Healing Justice and Equity, stressed that hesitations in expanding the availability of medications allow viruses like COVID-19 to mutate into new strains that may be more resilient against treatment and increase the virus’ spread among the general public. Already, certain populations are at a disproportionate risk of contracting COVID-19 due to a lack of adequate protections, including non-traditional essential workers, undocumented immigrants, and those belonging to racial minority groups.
Seema Mohapatra, Murray Visiting Professor of Law at Southern Methodist University Dedham School of Law, initiated the second panel, “Essential to Work: Achieving a Just Worker’s Bill of Rights,” by noting that a community is only as safe as its least protected individuals, especially during a pandemic. Mohapatra went on to criticize Executive Order 13917, specifically for its role in limiting protections for workers in the meat processing industry by ordering the facilities to maintain high production levels despite outbreaks of COVID-19 within many of these operations. The Order identified them as “essential” after pressure from the industry to resume normal activity despite apparent increases in infections among workers, the majority of whom are Latinx and/or Black. Additionally, over 70% of employees are classified as undocumented or of another non-citizen status.
A similar piece of legislation resulting in the loss of worker protections is California Proposition 22, which was passed as part of the state’s November 2020 ballot referendum and addressed drivers for app-based transportation and delivery services. Veena Dubal, Professor of Law at the University of California, Hastings College of Law, elaborated that the initiative created a subcategory for this type of employment that classified drivers as independent contractors instead of employees. It also exempted overarching companies (such as Uber or Lyft) from contributing to unemployment insurance and employer-sponsored health insurance, among other benefits programs. The enactment of these policies has contributed to the disproportionate exposure of non-traditional essential workers to COVID-19, as well as to significant economic disadvantages.
These case studies also illustrate the prevalence of labor market stratification and occupational segregation. On a systemic level, minority groups are the subjects of employment segregation and discrimination, which results in lower wages at a rate that is incommensurate with their proportion to the general population. Rebecca Dixon, Executive Director at the National Employment Law Project, added that Black workers are also more likely to face retaliation when advocating for improved working conditions, thus increasing the risk of exposure to disease and resulting in negative outcomes during national health crises like a pandemic. To address the ramifications of these structural forms of discrimination, all three panelists agreed that safety and workers’ rights should be expanded so that all workers have the same set of protections, including paid sick leave and hazard pay.
The negative effects of racism also impact the ability of minority groups to access effective care. Panel three on “Racism as a Public Health Crisis: The Cradle-to-Prison Pipeline” began with Wendy Bach, a Professor of Law at the University of Tennessee-Knoxville College of Law, discussing the prosecution of women for “fetal assault.” The “fetal assault” in question was in-utero transmission of narcotics to a fetus, which was deemed a crime in Tennessee under the justification that it would provide mothers with appropriate care and treatment that is otherwise difficult to access outside the criminal legal system. Bach went on to emphasize the importance of establishing accessible healthcare systems without police involvement, as the current system discourages mothers who use drugs from seeking care and trusting medical providers.
A similar approach is being taken to address racial disparities in maternal mortality rates within the United States. Black individuals with the ability to give birth are at a 2-3x higher risk (if under 30 years of age, and at a 4-5x higher risk if over 30 years of age) of dying from pregnancy-related causes compared to white individuals. Khiara M. Bridges, Professor of Law at the University of California-Berkeley School of Law, added that these disparities have widened and continue to persist across all income levels. The current approach of caring for the intersectional health of Black individuals with the ability to give birth results in the exposure of deeply intimate details of one’s life and, too often, the involvement of law enforcement. Other offered solutions propose an even greater level of surveillance of Black families, which threatens to perpetuate a system that is punitive rather than beneficial.
Kesi Foster, Co-Executive Director at Partners for Dignity & Rights, and Leon Smith, Executive Director at Citizens for Juvenile Justice, continued with this theme in their analyses of the presence of law enforcement in schools and resulting interactions between law enforcement and students of color. Foster contextualized the discussion by noting that one of the most common interactions between police and students in schools happens during mental health crises, and that Black students are disproportionately assumed to express negative behaviors, starting as early as pre-kindergarten. This misrepresentation persists in the juvenile legal system, through which Black and Latinx children are served harsher punishments than white children, and are thus more likely to be pushed deeper into the criminal legal system than their white counterparts. This phenomenon is commonly referred to as the school-to-prison pipeline.
Therefore, many of the current interactions with people of racial and ethnic minorities ineffectively involve law enforcement rather than the appropriate health or support services. For children, Foster recognized that these interactions with law enforcement send an early message that youth from marginalized backgrounds may not be fully supported by public agencies. Thus, he and Smith agreed that police should be removed from schools and replaced with counselors and school nurses. Similarly, Bach and Bridges concurred with the withdrawal of law enforcement from certain clinical encounters where therapy and treatments could instead be deployed, emphasizing the consensus that safety is better found through access to social, emotional, and mental health resources.
The impact of the school-to-prison pipeline is illustrated by the almost 2.3 million people currently detained within the United States’ criminal legal system; 40% of whom are Black, despite Black people making up only 13% of the total United States’ population. White individuals, however, make up 64% of the country’s total population, but only 39% of those in prisons and jails. In the final panel, “Prisons, Pandemics, and Population Health,” Adnan Khan, former Executive Director and Co-Founder of Re:Store Justice and Founder of Firstwatch Films, identified that there are both mass incarceration and mass criminalization complexes within the United States. He clarified that mass incarceration is an influx of people into the system, which is often paired with the mass criminalization of certain people or cultures. Khan emphasized the importance of these concepts during health crises and noted that attention must be paid to the COVID-19 virus itself, the policies formed in response to the virus, and the roles these policies play in causing death and illness among individuals who are incarcerated.
In terms of the progression of the COVID-19 virus, incarcerated populations are seeing a rate of death from the virus estimated to be three times higher than that of the general United States population (if age and sex distributions were comparable). Some preliminary data also suggests that Black individuals who are incarcerated comprise a greater proportion of those fatalities. Specifically, researchers in Michigan found that, by May 2020, 48% of people in prison who had died from COVID-19 were Black, while the rate of people who had died from COVID-19 in the state overall was lower (40%). Sharon Dolovich, Professor of Law at the University of California-Los Angeles (“UCLA”) School of Law and Faculty Director of the UCLA Prison Law & Policy Program, attributed this increased rate of death among incarcerated populations to the unique characteristics of correctional facilities that reduce the ability to properly social distance, ventilate areas, and enact effective sanitation measures.
Keri Blakinger, Staff Writer at The Marshall Project, shared that conversations via cell phones have become a key means of communication between individuals who are incarcerated and the “free world” during the pandemic. Consequently, personal testimonies from such conversations have disclosed that some medical staff would respond to complaints of symptoms by attributing them to allergies, and that quarantine of infected individuals who are incarcerated sometimes consisted of placing them in solitary confinement. These policies and practices have discouraged incarcerated individuals from seeking medical staff in response to signs and symptoms of COVID-19.
Without these personal testimonies, the amount of available information about the functions of prisons and jails during the pandemic would be greatly diminished. Blakinger championed this topic and imparted that, as a journalist, obtaining information directly from prison systems is difficult and time-consuming, but that the same information is nearly always available in other settings. This culminated into two collective critiques: the first echoed previous speakers’ calls for data and other information from publicly funded institutions to be shared with such contributors, and the second addressed the need to reduce the population of incarcerated individuals by confronting systemic factors that contribute to mass criminalization.
With Northeastern University located in Massachusetts, the history of the Commonwealth needs to be acknowledged to provide appropriate care and services to its constituents. Massachusetts was the first colony to legalize slavery in 1641, and was complicit in enacting the Home Owners’ Loan Act of 1933. As of 2020, the Commonwealth has one of the largest racial disparities in youth incarceration rates in the country, a rate of positive COVID-19 cases among Black and Hispanic individuals that is higher by a factor of three compared to their white counterparts, and had the sixth highest occurrence of reported anti-Asian hate incidents in the country from March 2020 to February 2021. These persistent inequalities illustrate the longstanding impacts of policies rooted in discrimination. To avoid reproducing the same inequity, there must be targeted advocacy, systems, and structures that prevail across systematic, community, and interpersonal levels. The conversations shared during the Symposium are just a glimpse of the discussions that are necessary to produce tangible and widespread results. I urge you to expand your learning and actively engage in community work that promotes equity, justice, and respect for all.
Kelsea Davis is a D.P.T. student at Northeastern University. Prior to physical therapy school, she graduated with a Bachelor of Science in Health Science from Northeastern University. Kelsea has held co-op positions at both Massachusetts General Hospital and Spaulding Rehabilitation Hospital and enjoys volunteering her time for events like the Boston Marathon and expanding her knowledge beyond healthcare.