Abstract

Excerpted From: Govind Persad, Antiracist Medicine in Colorblind Courts, 123 Michigan Law Review 145 (November, 2024) (393 Footnotes) (Full Document)

In August 2022, Ky'reelle Riley died after a severe asthma attack. He was 13.

Ky'reelle's devastating death exemplifies a tragic health disparity. Black children in the United States are almost eight times as likely as their white counterparts to die of asthma. This inequity has multiple causes: Housing disparities disproportionately expose Black children to asthma triggers like mold. Environmental racism exposes them to particulate pollution from trucks and factories. The effects of "toxic stress, racism and discrimination" make them likelier to be born preterm or at low birth weight.

Health systems' responses to asthma are often also inadequate: Ky'reelle's parents reported that "doctors 'brushed off"D' their "concerns that there might be something wrong." Although they tried to meet with an asthma specialist for Ky'reelle, his parents were informed that "the earliest available appointment was in October"--two months after he died. Clinical research that could help develop treatments for asthma often fails to include racial and ethnic minority participants, despite the disproportionate burden of the disease.

Health professionals and systems increasingly strive to counteract the structural racism that underpins these health disparities. Some have taken action to combat environmental racism and redlining; others have attempted to recruit health professionals from underrepresented groups or match those professionals with same-race patients. Yet others have attempted to improve representation in clinical trials.

Health professionals and systems understandably may not have law top of mind when taking action against racism--their priority is saving lives, not satisfying judges. But current legal precedent strictly limits the ability of governments, recipients of government funding, employers, and even private individuals to make decisions on the basis of race, including to mitigate racial injustice. The Supreme Court's recent invalidation of two university admissions programs exemplifies this "colorblind" judicial turn. Current precedent also constrains, though much less strictly, the pursuit of race-conscious goals like reducing racial health disparities even when done without racial classifications.

This Article anticipates what will happen when antiracist medicine collides with colorblind law and considers how health professionals and systems can design programs that pass legal muster. Given the complexity of doctrine in this area, the Article focuses on identifying what will pass muster under present precedent or plausible evolutions of that precedent.

Part I describes the law that will be most relevant if antiracist medicine is challenged in court. Section I.A examines decisions interpreting the Fourteenth Amendment's Equal Protection Clause. Section I.B examines federal statutes.

Part II identifies three reasons why medicine might take race into account: to improve individual and population health (beneficent consideration of race), to reduce racial health disparities (egalitarian consideration), and to redress historical injustice (reparative consideration). Sections II.A-II.E examine five areas within health systems where classifying patients or health professionals by race has been advocated as a means to these goals: professional training, the professional-patient encounter, scarce resource allocation, public health, and clinical research.

Part III discusses how medicine might respond to courts' colorblind turn. Policies that classify patients or professionals by race will have to satisfy strict scrutiny, which will be difficult. In contrast, policies that pursue antiracist goals without classifying patients or providers by race will pass muster more easily.

In previous work, I have examined the legality of considering race in the allocation of scarce medical interventions. Other scholars have discussed specific issues, such as the legality of seeking same-race physicians. In this Article, by contrast, I systematically examine how the Supreme Court's approach to race and equal protection constrains efforts to address racial health disparities.

[. . .]

The Supreme Court has adopted an increasingly restrictive regime for race-aware actions. A successful racially classificatory policy not only has to further a compelling interest but also satisfy the exacting requirements of narrow tailoring. Satisfying these requirements requires seriously considering alternative pathways to realizing the compelling interest that do not classify individuals by race. It also requires painstakingly crafting the racial classifications contained in the policy to ensure that they contain, as far as possible, all and only the individuals whose differential race-based treatment is necessary to realize the compelling interest. For policies that do not classify by race, decision-makers have a freer hand. But even for these policies, courts seem willing to invalidate certain race-conscious motives, such as motives that predominantly or adversely affect certain races.

In the current legal environment, racial health inequities cannot be effectively addressed without recognizing present legal limits and how those limits might evolve. A policy cannot prevent future Black children from dying of asthma if it is enjoined from taking effect or withdrawn once challenged. And it can cause needless future deaths if it prompts new limits. Yes, professional ethics sometimes requires law breaking. But naive policy design should not be excused as principled civil disobedience.

Awareness of legal constraints on the pursuit of racial health equity should not be equated with endorsement of these constraints, nor with a belief that present constraints are permanent. Health professionals and systems can and should support the enactment of laws and regulations that advance racial justice. But that work must begin with an understanding of legal precedent as it stands today. This Article offers such an understanding.

Associate Professor, University of Denver Sturm College of Law. JD, PhD, Stanford University.