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Journal of Law and the Biosciences, 1–53
https://doi.org/10.1093/jlb/lsab030
Original Article
The health equity mandate
Wendy Netter Epstein*,†
DePaul University College of Law, 25 E. Jackson Blvd., Chicago, IL 60604, USA
*Corresponding author. E-mail: wepstein@depaul.edu
ABSTRACT
People of color and the poor die younger than the White and prosperous.
And when they are alive, they are sicker. Health inequity is morally tragic.
But it is also economically inecient, raising the nation’s healthcare bill
and lowering productivity. The COVID pandemic only, albeit dramatically,
highlights these pre-existing inequities. COVID suerers of color die at
twice the rate of Whites. The cause, in large part, is structural inequality
and racism. Neither the popular nor the scholarly discussion of health-
care inequity, while robust, has translated into palpable and rapid progress.
This article describes why health inequity has so far proven intractable. In
the healthcare system, no one actor has both adequate incentive and ade-
quate wherewithal to create progress. The healthcare system cannot solve
the problem alone. To jumpstart reform, the article suggests a new reg-
ulatory approach, grounded in principles of democratic experimentalism
and cooperative federalism. It draws inspiration from the examples that
the Health Insurance Portability and Accountability Act (HIPAA) and the
Clean Air Act provide. A federal health equity mandate, with funding and
penalties for state non-compliance, will spur collaboration between federal,
state, local, public, and private entities and start the USA on the path to
remediating healthcare’s inequities.
KEYWORDS:collaboratives, health inequity, legal mandate, pandemic,
social determinants, structural racism
†Professor of Law, DePaul University College of Law and Associate Dean of Research and Faculty Profes-
sional Development, Jaharis Health Law Institute. The author wishes to thank Christopher Buccafusco,
Emily Cauble, I. Glenn Cohen, Valerie Gutmann Koch, Craig Konnoth, Jessica Mantel, Gregory Mark,
Seema Mohapatra, Govind Persad, Nicholson Price, Jessica Roberts, Christopher Robertson, R achelSachs,
Ana Santos Rutschman, Nadia Sawicki, Nicolas Terry, Charlotte Tschider, Lindsay Wiley, Jonathan Will,
Megan Wright,and Ruqaiijah Yearby.The author also thanks attendees of the Virtual Health Law Workshop
for insightful comments and Sheng Tong and Ashley Weringa for terric research assistance.
2•The health equity mandate
I. INTRODUCTION
The pandemic has brought into sharp focus a reality that has long been true—health
inequity in the USA is tragic and trending in the wrong direction.1Life expectancy
varies considerably by wealth and geography. In some auent counties, a person lives
on average 20 years longer than in comparable poor counties.2Life expectancy also
varies starkly by skin color and education.3
Even before the pandemic, other metrics were similarly troubling. Black Americans
were more likely to have multiple chronic illnesses than White Americans.4Racial and
ethnic disparities in maternal and child health outcomes were signicant, with Black
women three times more likely to die of pregnancy-related causes than White women.5
And Black infants were twice as likely to die as White infants.6
The pandemic has further illustrated the consequences of these pre-existing
inequities. Black Americans have contracted COVID-19 at three times the rate of
White Americans.7Adjusted for age, Pacic Islanders, Latinos, Blacks, and Indigenous
people are all more than twice as likely to die of COVID than White and Asian people.8
There is nothing about the mechanism of the virus that causes these disparate results.9
1See, eg, Frederick J. Zimmerman & Nathaniel W. Anderson, Trends in Health Equity in the United States by
Race/Ethnicity, Sex, and Income,1993–2017, 14 JAMA N. O 1, 7 (2019).
2See Laura Dwyer-Lindgren et al., Inequalities in Life Expectancy among US Counties 1980 to 2014: Temporal
Trends and Key Drivers, 177 JAMA I. M. 1003, 1005–06 (2017) (life expectancy 87 years in
auent Colorado counties and 66 years in poor counties in North and South Dakota).
3See S. JayOl shansky, Dierences in Life Expectancy Due to Race and EducationalD ierencesare Widening , and
Many May Not Catch Up, 31 H A 1 (Aug. 2012); Laura Dwyer-Lindgren et al., Inequalities in
Life Expectancy Among US Counties, 1980 to 2014: Temporal Trends and Key Drivers, 177 JAMA I.
M. 1003 (2017); Timothy J. Cunningham et al., Vital Signs: Racial Disparities in Age-Specic Mortality
Among Blacks or Aican Americans—United States,1999–2015,66M&MW.R.
444, 447 (2017), https://www.cdc.gov/mmwr/volumes/66/wr/pdfs/mm6617e1.pdf.
4See Anh R. Quinones et al., Rachel/Ethnic Dierences in Multimorbidity Development and Chronic Disease
Accumulation for Middle-aged Adults, 14 P O 1, 6 (2019), DOI: 10.1371/journal.pone.0218462.
5See Emily E. Peterson et al., Racial/Ethnic Disparities in Pregnancy-Related Deaths—United States 2007–
2016, 68 C D C P R 762 (2019).
6See Infant Health Mortality and Aican Americans, U.S. D H H S
O M H, https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=4&lvlid=23 (last
accessed Jan. 20, 2021); Metrics that Matter for Population Health Action: Workshop Summary,N
A S, E, M (2016), DOI: 10.17226/21899.
7See Richard A. Oppel et al., TheFullestLookYetatRacialInequityofCoronavirus,N.Y. T (July 5, 2020).
8The Color of Coronavirus: COVID-19 Deaths by Race and Ethnicity in the U.S. (data as of Jan. 7, 2021),
A.P. R L, https://www.apmresearchlab.org/covid/deaths-by-race (last accessed August 19,
2021); see also Mary T. Bassett et al., The Unequal Toll of COVID-19 Mortality By Age in the United
States: Quantifying Racial/Ethnic Disparities 1–12 (HCPDS, Working Paper Vol. 19 No. 3, June 12,
2020), https://cdn1.sph.harvard.edu/wp-content/uploads/sites/1266/2020/06/20_Bassett-Chen-Krie
ger_COVID-19_plus_age_working- paper_0612_Vol-19_No-3_with- cover.pdf (last accessed August
19, 2021); Richard A. Oppel et al., The Fullest Look Yet at Racial Inequity of Coronavirus, N.Y. T ( Ju ly
5, 2020); see Daniel Wood, As Pandemic Deaths Add Up, Racial Disparities Persist—And In Some Cases
Worsen, NPR (Sept. 23, 2020), https://www.npr.org/sections/health-shots/2020/09/23/914427907/a
s-pandemic-deaths-add- up-racial-disparities- persist-and- in-some-cases-worsen.
9Nicolas Terry, COVID-19 and Healthcare Lessons Already Learned, 7 J. L. B (May 2020), DOI:
10.1093/jlb/lsaa016 (‘W hile the disease is pathologically agnostic, it has exposed America’s deep economic
and related racial inequalities.’); Eun Ji Kim, Lyndonna Marrast & Joseph Conigliaro, COVID-19: Magni-
fyingthe Eectof Health Disparities, 35 J. G. I. M. 2441 (2020)(noting COVID has uncovered
disparities long embedded within society).
The health equity mandate •3
These inequities are a moral wrong—under any theory of morality.10 But health
inequity is not just a social justice issue. It is also an economic one. Eliminating race-
based health disparities would save $230 billion in direct medical expenditures and
more than $1 trillion in indirect costs.11
The causes of health inequity are complicated. Policy focus has centered squarely
on dierences in access to care—the actual ability to see a doctor for diagnosis and
treatment.12 But while access to quality healthcare is an important part of the puzzle,
xing access to care will not solve health inequity.
TheAordableCareActprovesthepoint.Theonlymajor,coordinatedhealthpolicy
initiative in the last decade, it was primarily designed to increase access to hospitals
and practitioners by expanding eligibility for Medicaid and creating subsidized private
insurance. While it did signicantly13 reduce the number of uninsured Americans, and
notably helped nearly three million Black Americans gain health insurance coverage,14
health inequity has persisted.15
Instead, there is nearly uniform agreement from those who study the health equity
problem: it takes root long before people get sick. Good health has more to do with
safe housing, access to healthy food, environmental factors, and so forth—the social
determinants of health. Structural inequities cause disparate experiences with these
social determinants of health, which then drive health inequity.16 In fact, studies have
shown that social determinants may account for 80–90 per cent of the modiable
contributors to healthy outcomes.17
10 See Cynthia Jones, The Moral Problem of Health Disparities, 100 A. J. P H S47 (2010),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2837423/.
11 See Thomas LaVeist, Darrell Gaskin & Patrick Richard, Estimating the Economic Burden of Racial Health
Inequalities in the United States, 41 I’ J. H S. 231 (2011).
12 See,eg,KarenE.JoyntMaddoxetal.,US Health Policy—2020 and Beyond:Introducing a New JAMA Series,
321 JAMA 1670 (2019); Allison K. Homan, Health Care’s Market Bureaucracy, 66 UCLA L. Rev. 1926
(2019); Abbe R. Gluck & Nicole Huberfeld, What Is Federalism in Healthcare for?, 70 S. L. R. 1689,
1780 (2018); C T. R, E: W H I I
W D A (2019); Wendy N. Epstein, Private Law Alternatives to the Individual
Mandate, 104 M. L. R. 1429 (2020).
13 Although the ACA led to 20 million previously uninsured Americans getting coverage, subsequent Trump
Administration policies weakening ACA protections and pandemic-related job loss has caused uninsured
numbers to rise again. See Rachel Gareld & Jennifer Tolbert, What We Do and Don’t Know About Recent
Trends in Health Insurance Coverage in the US, KFF (Sept. 17, 2020), https://www.k.org/policy-watch/
what-we-do-and-dont-know-about-recent-trends-in-health-insurance-coverage-in-the-us/.
14 See ACA Implementation-Monitoring and Tracking: Who Gained Health Insurance Coverage Under the ACA
and Where Do They Live?, U I (Dec. 2016), https://www.urban.org/sites/default/les/
publication/86761/2001041-who- gained-health- insurance-coverage-under-the-aca-and-where-do- the
y-live.pdf; Yet, this population is still more likely to be uninsured than white Americans. See Thomas
C. Buchmueller & Helen G. Levy, The ACA’s Impact on Racial and Ethnic Disparities in Health Insurance
Coverage and Access to Care, 39 H A 395 (2020); Edward R. Berchick, Jessica C. Barnett, &
Rachel D. Upton, Health Insurance Coverage in the United States: 2018, U S C B
1, 14 (Nov. 2019), https://www.census.gov/content/dam/Census/library/publications/2019/demo/
p60-267.pdf .
15 Omolola E. Adepoju, Michael A. Preston & Gilbert Gonzales, Health Care Disparities in the Post-Aordable
Care Act Era, 105 A J P H S665 (2015) (noting‘nearly 5 years aer the ACA was signed into
law, researchers are still nding a wide chasm in healthcare access, quality, and outcomes’).
16 Social Determinants of Health, 3 NEJM C (Dec. 1, 2017), https://catalyst.nejm.org/doi/fu
ll/10.1056/CAT.17.0312; see also William Sage, Adding Principle To Pragmatism: The Transformative
Potential of ’Medicare-for-All’ 28 (May 13, 2019). SSRN: https://ssrn.com/abstract=3387120.
17 See L. DeMilto & M. Nakashian, Using Social Determinants of Health Data to Improve Health Care and
Health: A Learning Report, R W F (July 26, 2016), https://www.rwjf.
4•The health equity mandate
Policymakers have known for decades that social determinants drive health
inequity.18 Nonetheless, only limited progress has been made.19
It is not hard to see why the problem has proven so intractable. In a highly frag-
mented healthcare system,20 no one actor—not the government, not payers, and not
providers—has both adequate incentive and adequate wherewithal to address social
determinants.
Private payers, motivated by prot maximization, make decisions to increase rev-
enue and decrease cost. Economically rational payers will invest in social determinants
of health if the savings in claims costs resulting from the investment exceed the cost
of the investment. But with churn between plans and high rates of Medicaid coverage
and uninsurance21 in the most at-risk populations (rather than coverage by private
payers), it is hard and maybe impossible for any individual private insurer to prove
the value proposition.22 Not surprisingly, private insurance has historically focused
on reimbursing for the provision of clinical healthcare, narrowly dened, and has not
reimbursed for mold remediation in an asthmatic’s apartment or for the delivery of
healthy food to a diabetic living in a food desert.
Government payers have more motivation to address the problem, as healthier
Americans mean fewer who require government subsidy or Medicaid coverage.23 Yet
the nation’s public health system is chronically underfunded.24 And the compart-
mentalized government infrastructure has historically meant that health funding is
siloed.25 Medicare, for instance, does not typically spend funds on addressing housing
org/content/dam/farm/reports/reports/2016/rwjf428872; see also Samantha Ar tiga and Elizabeth Hin-
ton, Beyond Healthcare: The Role of Social Determinants in Promoting Health and Health Equity,KFF
2018, https://www.k.org/racial-equity-and- health-policy/issue-brief/beyond- health-care- the-role-of-
social-determinants-in-promoting-health-and-health-equity/; Communities in Action: Pathways to Health
Equity, N A S, E, M (National Academic Press
2017); Carlyn M. Hood et al., County HealthR ankings:R elationshipsBetween Determinant Factorsand Health
Outcomes, 50 A. J. P. M. 129 (2016).
18 See Alan Nelson, UnequalTreatment:ConontingRacialandEthnicDisparitiesinHealthCare,94J.N.
M. A. 666 (2002) (nding that even with equal access to healthcare, racial minorities suer
dierences in quality of health); C U E R E-
D H C, I M, U T: C
R E D H C, Washington, D.C.: The National Academies Press
(Brian D. Smedley et al. eds., 2003).
19 See Michele K. Evans, Health Equity—Are We Finally on the Edge of a New Frontier?,383N.E.J.M.
997 (2020) (‘[T]he United States, the world’s richest country, has failed to achieve health equity.’).
20 See Rachel Sachs, Integrating Health Innovation Policy, H J. L. & T. (forthcoming 2020)
(discussing fragmentation of United States healthcare system).
21 In this way, access and social determinants of health are inextricably intertwined. Payers only pay for those
who are insured.
22 Part I I.C., ina, discusses how the cost of Medicaid and uninsurance is born, in part, by private insurers and
how that should factor in the calculus.
23 Government actors may have insucient incentive tosave the government money as they don’t personally
have skin in the game and may not be in their roles long enough to be praised for successes or blamed for
failures.
24 See Jeery Levi et al., Investing in America’s Health: A State-By-State Look at Public Health Health Funding
and Key, T A’ H (2013), https://www.tfah.org/report-details/investing-in- ame
ricas-health- a-state-by-state- look-at-public-health- funding-and- key-health-facts/.
25 Jessica Mantel, Tackling the Social Determinants of Health: A Central Role for Providers,33G.S.U.L.R.
217 (2017).
The health equity mandate •5
crises, even if housing is a key driver of health outcomes.26 Additionally, the federal
government has insucient means of coordinating eorts with local entities that can
tailor interventions to the unique needs of each community.
Finally, although much faith has been put in providers—who have perhaps the
best sense of patient needs—to drive health equity improvements, their eorts also
have important limitations. Providers are trained to provide clinical care and not to
address the social determinants of health.27 Theycannotadoptandcreatepublichealth
policies.28 And particularly now, as the world is ghting COVID-19, providers are
facing unprecedented nancial and other pressures.29
This is not to say that health inequity is being ignored by the industry. Eorts to
address social determinants of health are being made by the government, payers, and
providers, particularly in recent years. Still, these eorts continue to fall short of what
is needed.
Even a move to a system of universal coverage—while impactful—would not be
enough to x the problem. Social determinants have a larger impact on health out-
comes than the care provided once people become sick. A new regulatory approach to
addressing health equity must therefore look beyond just the healthcare system. It will
require collaboration not only among industry actors but also outside the healthcare
system—to improve housing and access to education, infrastructure, poverty, and the
environment.
This article nds inspiration in the principles of democratic experimentalism30 and
the related approaches of cooperative federalism31 and adaptive management.32 It
draws specic lessons from two ongoing regulatory experiments that provide instruc-
tive analogies—the health industry’s experience with HIPAA and environmental reg-
ulators’ use of the Clean Air Act.33
Democratic experimentalism addresses the ‘master problem of organizing
decentralized, collaborative design and development under conditions of volatility and
diversity.’34 It envisions an important role for the federal government in goal-setting
and coordination, but an equally if not more important role for autonomy to be given
to local units to experiment and share knowledge with others facing similar problems.
26 Id.;seealsoLevi,supra note 24; Govind Persad, Choosing Aordable Health Insurance, 88 G. W. L.
R. 819 (2020).
27 Health Care’s Blind Side: The Overlooked Connection Between Social Needs and Good Health,P:
R W J F (Dec. 2011), http://www.rwjf.org/content/dam/farm/reports/
surveys_and_polls/2011/rwjf71795.
28 Id.
29 Leif I. Solberg, Theory vs Practice: Should Primary Care Practice Take on Social Determinants of Health Now?
No., 14 A F M. 102 (2016).
30 See Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism,98C.L.R.
267 (1998).
31 See, eg, Robert L. Fischman, Cooperative Federalism and Natural Resources Law, 14 N.Y.U. E. L.J. 179,
190 (2005). (dening cooperativefederalism by the hallmark of state implementation of federal standards).
32 See, eg, Robin Kundis Craig & J.B. Ruhl, Designing Administrative Law for Adaptive Management,67V.
L. R. 1, 3–4 (2014). (dening adaptive management on the basis of continuous learning and adjusting
policy implementation in response to data).
33 See also Hannah J. Wiseman & Dave Owen, FederalLaboratorie s of Democracy, 52 U.C. D L. R. 1119
(2018) (describing how U.S. agricultural policy, federal policies on wildre management and the United
States Department of Education’s Race to the Top, provide other examples of similar techniques).
34 Dorf & Sabel, supra note 30, at 286.
6•The health equity mandate
Relatedly, the hallmark of cooperative federalism is a exible relationship between the
federal and state governments, where the federal government sets policy goals and
oen provides funding but leaves implementation exibility to the states. Adaptive
management focuses on the need for continuous learning and adjustment in policy
implementation in response to data collection.
HIPAA, in key respects, is a democratic experimentalism success story. Today,
HIPAA is known mostly for its standards on privacy and security. But HIPAA also
addressed another entrenched health industryproblem:fragmentedtechnologyinfras-
tructure. Lack of standardization meant billions of dollars in unnecessary ineciency
costs for the industry and high rates of error.35 Theindustrycouldnotseemtoaddress
the problem itself, in part because of the sheer complexity of the problem, but also
because it could not solve the collective action problem.36
These hurdles were largely (although not perfectly) overcome, with a combination
of top-down regulation and bottom-up collaboration. The HIPAA statute created a
binding legal mandate that lit the re for change.37 And HIPAA collaboratives—
where covered entities voluntarily chose to work together to implement the HIPAA
mandate—gured out best practices for implementing the new legal requirements.38
Environmental regulatory approaches are illustrative of similar principles.39 For
instance, with the Clean Air Act, the federal government sets air quality standards
and then gives responsibility to the states to develop their own implementation plans,
reserving the authority to step in and implement a federal plan if state governments
fall short.40 The federal government also provides funding and takes an active role
in reviewing, amending, and approving plans. This regulatory regime—an example of
cooperative federalism—enables state and local solutions to vary according to diering
circumstances but also promotes learning at the federal level.41
These examples suggest a regulatory regime with the promise of addressing health
inequity—a federal mandate that requiresstates achieve certain metrics of health equity
or face civil monetary penalties and federal funding to spur collaboration between
federal and local, public and private entities. A model like this could be applied to
many health industry problems. The recent experience with a failed COVID vaccine
distribution bears some similar hallmarks. It also could have been vastly improved with
35 See M. J. Friedrich, Health Care Practitioners and Organizations Prepare for Approaching HIPAA Deadlines,
286 JAMA 1563 (2001); Mary Beth Johnston & Leighton Roper, HIPAA Becomes Reality: Compliance with
New Privacy, Security, and Electronic Transmission Standards, 103 W. V. L. R. 541, 569 (2000). Although
note that there is some controversy about how much spending HIPAA required to get the savings.
36 See WendyN. Epstein, Bottoms Up: A Toast to the Success of HealthCare Collaboratives... What Can We Learn?,
56 A. L. R. 739 (2004).
37 Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104–191, tit. II, 110 Stat. 1936,
1991.
38 See supra note 31.
39 See, eg, Kirsten H. Engel, Democratic Environmental Experimentalism,35UCLAJ.E.L.&P’57,58
(2017), Robin Kundis Craig & J.B. Ruhl, Designing Administrative Lawfor A daptiveManagement ,67V.
L. R. 1 (2014), David L. Markell & Robert L. Glick sman, Dynamic Governance in Theory and Applicati on,
Part I , 58 A. L. R. 563, 611–14 (2016).
40 See 42 U.S.C. § 1857c-5(c) (1970).
41 See Charles F. Sabel, Dewey, Democracy, and Democratic Experimentalism, 9(2) C
P 35, 44 (2012).
The health equity mandate •7
standard-setting and funding from the federal government that le states room to make
adjustments for local circumstances.
Part I of this article describes the health inequity problem and its complicated
causes. It focuses on the large role that social determinants of health play in creating
disparities in health outcomes. Given the widespread recognition that social determi-
nants of health are a key driver of health inequity, Part II then describes eorts by key
health industry players (state and federal government, private payers, providers, and
charities) to address social determinants. But it also explores why current mechanisms
are insucient, with particular focus on the structural impediments to success and the
need to look beyond the connes of the healthcare system. Part III introduces the the-
ory of democratic experimentalism and related regulatory approaches. It then explores
two examples of those regulatory approaches in action: HIPAA collaboratives and
environmental regulations. Finally, Part IV concludes with the promise of a mandate-
driven, funded, collaborative, public–private model to address social determinants of
health.
Fixing the health inequity problem in the USA is both a moral and a nancial
imperative. Success could mean saving millions of lives and billions of dollars.
II. UNCONSCIONABLE HEALTH INEQUITY AND WHAT CAUSES IT
According to the World Health Organization, health equity means that ‘everyone
should have a fair opportunity to attain their full health potential and that no one
should be disadvantaged from achieving this potential.’42 In the real world, however,
heath equity does not exist. Rather, there are systematic dierences in the opportunities
that certain groups have, leading to dierences in social determinants of health like
education and housing.43 As a result, disadvantaged groups suer worse health out-
comes.44 The gap between those achieving full health potential and those who cannot
is the health disparities that lead to unnecessary deaths, disease burden, and cost to our
healthcare system.
A key assumption of this article is that most health inequities are avoidable.45 Racial
and ethnic health inequities do not fundamentally stem from biological dierences.
They stem from structural inequities, social determinants of health, and racism. And
while health inequity is an international problem facing every country,46 disparities are
moreacuteintheUSAthaninanyotherdevelopedcountry.
47
42 See Health Equity, W H O, https://www.who.int/topics/health_equity/en/
(last accessed Oct. 28, 2020).
43 See James N. Weinstein et al., Communities in Action: Pathway to Health Equity,NA
S, E, M (2017).
44 See 10 Factson Health Inequities and Their Causes, W H O,https://www.who.i
nt/features/factles/health_inequities/en/ (last accessed Apr. 2017).
45 Also, markets do not inherently provide ‘fairness.’ See, eg, Sally Blount, Whoever Said that Markets Were
Fair?,16N.J.,237 (2000).
46 Chris Brown et al., Governance for Health Equity, W H O E (2020),
https://www.euro.who.int/__data/assets/pdf_le/0020/235712/e96954.pdf?ua=1.
47 Alvin Powell, The Costs of Inequality: More Money Equals Better Healthcare and Longer Life,U.S.N
(Feb. 23, 2016, 12:01 AM), https://www.usnews.com/news/articles/2016-02-23/the-costs-of-inequali
ty-more-money-equals- better-health-care-and-longer-life (discussing how health disparities in the U.S.
explain why life expectancy trails peer nations).
8•The health equity mandate
II.A. Evidence of Health Inequity
Over the last several decades, health outcomes in the USA have generally improved.48 If
you look at average life expectancy and infant mortality across the population, you feel
encouraged by the progress that has been made.49 Butthatprogressallbutdisappears
for populations that are low income; less educated; Black or Native American; or who
live in certain parts of the country.50 Duringthepandemic,millionshavelosttheirjobs
and their health insurance.51 They have quit school to support their families.52 And
they are living in conditions that make it dicult to social distance, leading to higher
rates of infection. The pandemic has only served to exacerbate health inequity in the
USA.53
II.A.i Pre-COVID Data
Income is the greatest predictor of health inequity. The poor in America disproportion-
ately suer from health disparities.54 Thegapbetweenlifeexpectancyfortherichand
life expectancy for the poor is increasing. In 1920, a wealthy man could expect to live,
on average, 5 years longer than a poor man.55 Now the divide is more than 12 years.56
There is a gradient of health that runs parallel to the socioeconomic spectrum—
the poorer you are, the worse your health outcomes are—at least until you reach a
certain income.57 It holds true even if you consider mortality rates for children under
48 See Jeery Selberg et al., A Generation of Healthcare in the United States: Has Value Improved in the Last
25 years?, P-KFF H S T (Dec. 6, 2018), https://www.healthsystemtracke
r.org/brief/a-generation-of-healthcare-in-the-united-states-has-value-improved-in-the-last-25-years/
(but note that this is also a recent downward trend due to ‘suicide, opioid overdose and alcohol cirrhosis
of the liver’); Ron Manderscheid, Take Steps to Address Health Inequity and Other Social Justice Issues,
P & B H L N (Sept. 9, 2020), https://www.psychcongre
ss.com/article/take-steps- address-health- inequity-and-other-social-justice-issues.
49 See Max Roser, It’s Not Just About Child Mortality, Life Expectancy Improved at All Ages,OWIN
D (Sept. 23, 2020), https://ourworldindata.org/its-not- just-about- child-mortality-life-expectancy-i
mproved-at-all-ages.
50 See Douglas C. Dover & Ana Paula Belon, The Health Equity Measurement Framework: A Comprehensive
Model to Measure SocialInequities in Health, 18 I’ J. E H 1, 8 (2019), https://equityhealthj.
biomedcentral.com/articles/10.1186/s12939-019-0935-0.
51 See Stee Woolhandler & David U. Himmelstein,Intersecting U.S. Epidemic s: COVID-19 and Lack of Health
Insurance, A. I. M. ( July 7, 2020), DOI: 10.7326/M20-1491; Sumit Agarwal & Sommers Ben-
jamin, Insurance Coverage after Job Loss—The Importance of the ACA during the Covid-Associated Recession,
383 N. E. J. M. 1603 (2020).
52 See Stephen W. Patrick et al., Well-being of Parents and Children during the COVID-19 Pandemic: A National
Survey, 146 P 4 (2020); Abbey R. Masonbrink & Hurley Emily, Advocating for Children During
the COVID-19 School Closures, 146 P 3 (2020).
53 See Alvin Powell, The Costs of Inequality: More Money Equal s Better Health Care and Longer Life,U.S.N
& W R (Feb. 23, 2016), https://www.usnews.com/news/articles/2016-02-23/the- costs-of-i
nequality-more-money-equals- better-health-care-and-longer-life.
54 Raj Chetty et al., The Association between Income and Life Expectancy in the United States, 2001–2014, 315
JAMA, 1750 (Apr. 10, 2016), https://scholar.harvard.edu/les/cutler/les/jsc160006_01.pdf.
55 BarryP.Bosworth,GaryBurtless&KanZhang,What Growing Life Expectancy Gaps Mean for the Purpose of
Social Security, B I. (Feb. 12, 2016), https://www.brookings.edu/research/what-growing-li
fe-expectancy-gaps-mean-for-the-promise-of-social- security/#recent/.
56 Id.
57 See Social Determinants of Health: Key Concepts, WH O, https://www.who.int/
social_determinants/thecommission/nalreport/key_concepts/en/ (last accessed Oct. 28, 2020).
The health equity mandate •9
the age of ve.58 Thepoorestquintilehasthehighestmortalityrates,followedby
the second highest quintile, and so forth. Even comparing the wealthiest quintile and
second wealthiest, the health gradient holds true.59
Because racial and ethnic minorities are disproportionately low income, it might not
be surprising that the evidence of health disparities by race is also strong.60 And yet
it isn’t only the correlation between race and poverty that is predictive of inequity—
wealthier Black Americans have worse health outcomes when compared to comparably
wealthy White Americans.61 Indeed, ‘in terms of health, there’s approximately a ve-
year penalty for being African-American compared to being a white male[.]’62
African Americans, Latinx, and Native American populations also have greater
maternal and infant mortality rates than White Americans and higher rates of chronic
disease.63 Even as the overall death rates from heart disease in Black populations
and diabetes in Native American populations have decreased, the gap in rates when
compared to Whites has increased.64 And it is striking to consider that in the USA,
African Americans make up only 13 per cent of the population but account for almost
half of all new HIV infections.65
Geography is another key divide in health equity. Southern states tend to have
poorer health outcomes than northern ones.66 Rates of obesity and other non-
communicable diseases are also higher in the South.67 Finally, lack of education is
correlated with more deaths a year than smoking. One study estimated that almost
240,000 annual deaths are attributable to lack of a high school education compared to
160,000 deaths attributed to smoking.68
58 Id. (‘For example, if you look at under-5 mortality rates by levels of household wealth you see that within
counties the relation between socioeconomic level and health is graded.’).
59 Id.
60 SeeVickieMays,SusanD.Cochran&NamdiW.Barnes,Race, Race-Based Discrimination, and Health
Outcomes Among Aican Ameri cans,58 A . R. P. 201 (2007), https://www.ncbi.nlm.nih.gov/
pmc/articles/PMC4181672/pdf/nihms630658.pdf.
61 See supra note 5.
62 Id. And it is the case across, low-, middle-, and high-income countries.
63 Gianna Melillo, Racial Disparities Persist in Maternal Morbidity, Mortality and Infant Health, A.J.M.
C (June 13, 2020), https://www.ajmc.com/view/racial-disparities-persist-in-maternal-morbidity-
mortality-and- infant-health; Francesco Acciai et al., Pinpointing the Sources of the Asian Mortality Advantage
in the United States, 69 J E. C H 1006 (2015) (Asian Americans and Pacic
Islanders, notably, have a longer life expectancy than any other group in the United States).
64 See Karen M., Anderson, How Far Have We Come in Reducing Health Disparities?: Progress Since 2000:
Wor ksh op Su mma ry, 13–15, I M, (2012).
65 See HIV and Aican Americans, C F D C P, https://www.cdc.
gov/hiv/group/racialethnic/africanamericans/index.html (last accessed May 18, 2020).
66 See Samantha Artiga & Anthony Damico, Health and Health Coverage in the South: A Data Update,KFF
(Feb10, 2016), https://www.k.org/racial-equity-and- health-policy/issue-brief/health-and-health-cove
rage-in-the-south- a-data- update/. Health disparities exist regionally across America—Southern states, for
example, have poorer care, according to a 2014 government report.
67 Id.
68 Robert A. Hahn & Benedict I. Truman, EducationImprovesPublicHealthandPromotesHealthEquity,45
I J H S. 657 (2015).
10 •The health equity mandate
II.A.ii COVID Data of Health Inequity
COVID-19 has further exposed these pre-existing inequities but also exacerbated
them.69 People of color are getting COVID-19 at higher rates than Whites, and they
are also dying at higher rates than Whites.70 Because COVID-19 has only served to
worsen the social determinants of health of the most vulnerable populations,71 it will
likely increase health inequity going forward.
In Pennsylvania, Black people make up 11 per cent of the population but account
for 23 per cent of COVID-19 diagnoses.72 The situation is similar in Michigan and
Ohio.73 In California, Hispanics make up 39 per cent of the population but account for
61percentofCOVIDcases.
74 A similar divide for Hispanics is found in Utah, Oregon,
Illinois, and Nebraska.75
Rates of hospitalization and death from COVID-19 are also eye-opening. According
to the Centers for Disease Control, Black people are almost ve times as likely to
be hospitalized from COVID as Whites and two to three times as likely to die from
the virus—although in some places, ve to seven times as likely.76 Native Americans
and Latinx populations are also close to ve times more likely to be hospitalized from
COVID.77 When adjusted for age, Pacic Islanders, Latinos, Blacks, and Indigenous
people are all more than twice as likely to die of COVID than White and Asian people.78
69 See Emily A. Benfer, Seema Mohapatra, Lindsay F. Wiley & Ruqaiijah Yearby, Health Justice Strategies to
Combat the Pandemic: Eliminating Discrimination, Poverty, and Health Disparities During and After COVID-
19, 19 Y J. H P’ & E (2020) (describinghow the COVID-19 pandemic worsened health
inequity among historically marginalized groups and low-income populations);Ruqaiijah Yearby & Seema
Mohapatra, Law, Structural Racism, and the Covid-19 Pandemic, 7 J.L. & B 1 (2020).
70 Id.; see also COVID-19 Hospitalization andDeath by R ace/Ethnicity,C D C
P, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospi
talization-death- by-race-ethnicity.html (last accessed Aug. 18, 2020); Eddie Bernice Johnson & Lawrence
J. Trautman, The Demographics of Death: An Early Look at Covid-19, Cultural and Racial Bias in America,48
H C. L.Q. 357 (2021).
71 See Bo Burstrom & Wenjing Tao, Social Determinants of Health and Inequalities in COVID-19,30E.J.
P H 617 (2020); Patricia J.Peretz et al., Community Health Workers and Covid-19—Addressing
Social Determinants of Health in Times of Crisis and Beyond, 383 N E. J. M. e108 (2020); Sravani
Singu et al., Impact of Social Determinants of Health on the Emerging COVID-19Pandemic in the United States,
8 F. P H 406 (2020).
72 See COVID-19 Cases by Race/Ethnicity,KFF,https://www.k.org/other/state-indicator/covid-19-case
s-by-race-ethnicity/?currentTimeframe=0&sortModel=%7B%22colId%22:%22Location%22,%22sort
%22:%22asc%22%7D (last accessed Oct. 25, 2020).
73 Id.
74 Id.
75 Id.
76 See supra note 24.
77 Id; see also Hon. Adriano Espaillat (NY) ‘Hope and HealthEquity for Communities of Color.’ Congressional
Record 166:157 E830 (Sept. 11, 2020), https://www.congress.gov/congressional-record/2020/09/11/e
xtensions-of- remarks-section/article/E830-2.
78 The Color of Coronavirus: COVID-19 Deaths by Race and Ethnicity in the U.S. (data a s of Jan. 7,
2021), A.P. R L, https://www.apmresearchlab.org/covid/deaths-by-race; see also Mary
T. Bassett et al.,The Unequal Toll of COVID-19 Mortality by Age in the United States: Quanti-
fying Racial/Ethnic Disparities,19H.C.P.D.S.WP.S.(June12,
2020), https://cdn1.sph.harvard.edu/wp-content/uploads/sites/1266/2020/06/20_Bassett-Chen-Krie
ger_COVID-19_plus_age_working- paper_0612_Vol-19_No- 3_with-cover.pdf; Richard A. Oppel et al.,
TheFullestLookYetatRacialInequityofCoronavirus, N.Y. T (July 5, 2020), https://www.nyti
mes.com/interactive/2020/07/05/us/coronavirus-latinos-african-americans-cdc- data.html; See Daniel
Wood, As Pandemic Deaths Add Up, Racial Disparities Persist—And In Some Cases Worsen,NPR(Sept.
The health equity mandate •11
The pandemic has also unevenly impacted Americans’ economic status by race and
ethnicity. Black and Hispanic households have been more likely to suer pandemic-
related job loss.79 And Hispanic and Latino households in particular have the
greatest concerns about income stability as a result.80 This trend is not specic
to this pandemic. In 2009, the H1N1 inuenza pandemic led to racial minorities
suering higher rates of hospitalization than Whites.81 Even going all the way back
to the 1918 Spanish inuenza pandemic, racial minorities suered higher mortality
rates.82
The next section will consider what causes health inequity and what has caused the
pandemic in particular to disproportionately aect groups by income and race.
II.B. Causes of Health Inequity
The causes of health inequity are complicated and discussed in depth in other work.83
The following, however, presents a high-level overview of the most consequential
factors. It draws on a robust body of literature that describes how social, political,
economic, and environmental conditions lead to health inequity.84 Many of the disad-
vantages that vulnerable groups face today result from historical policies and practices
23, 2020), https://www.npr.org/sections/health-shots/2020/09/23/914427907/as-pandemic-deaths- a
dd-up-racial-disparities-persist-and-in-some-cases-worsen.
79 See Steven Brown, The COVID-19 Crisis Continues to Have Uneven Economic Impact by Race and Ethnicity,
U I ( July1, 2020), https://www.urban.org/urban-wire/covid-19-crisis-continues-have-u
neven-economic-impact-race-and-ethnicity.
80 See Dulce Gonzalez et al., Hispanic Adults in Families with Noncitizens Disproportionately Feel the Economic
Fallout om COVID-19, U I (May, 2020), https://www.urban.org/sites/default/les/
publication/102170/hispanic-adults-in-families- with- noncitizens-disproportionately-feel-the- economi
c-fallout- from-covid- 19_1.pdf; Sally Moyce et al., Exploring a Rural Latino Community’s Perception
of the COVID-19 Pandemic, E & H (2020), DOI: 10.1080/13557858.2020.1838456
(‘[Mexican participants] were concerned about the economic impact of the pandemic, noting that many
of their family had lost jobs and were struggling nancially.’).
81 Stephen A. Mein, COVID-19 and Health Disparities: the Reality of ‘the Great Equalizer,’ 35 J. G.
M. 2439 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7224347/pdf/11606_2020_Arti
cle_5880.pdf (‘During the 2009 H1N1 inuenza pandemic, minority groups had higher rates of serious
infection requiring hospitalizations compared with non-minority groups.’).
82 Id. (‘Similarly, during the 1918 “Spanish” inuenza pandemic, racial minorities had both higher all-cause
mortality and inuenza mortality rates compared with Caucasians.’).
83 See supra notes 2–4; Ole P. Ottersen et al., The Political Origins of Health Inequity: Prospects for Change, 383
T L 630 (2014).
84 See, eg, Dayna Bowen Matthew, Structural Inequality: The Real Covid-19 Threat to America’s Health and
How Strengthening the Aordable Care Act Can Help, 108 G. L.J. 1679, 1680 (2020); Scott Burris, From
Health Care Law to the Social Determinants of Health: A Public Health Law Research Perspective, 159 U. P.
L. R. 1649 (2011); Gwendolyn Roberts Majette, Striving for the Mountaintop-the Elimination of Health
Disparities in A Time of Retrenchment (1968–2018), 12 G. J.L. & M. C R P. 145
(2020); Raj C. Shah, Sarah R. Kamensky, Health in All Policiesfor Government: Promise, Progress, and Pitfalls
to Achieving Health Equity, 69 DP L. R. 757, 758 (2020); Ole Otterson et al., The Political Origins
of Health Inequity: Prospects for Change, 383 T L 630 (2014); Rachel Thornton et al., Evaluating
Strategies For Reducing Health Disparities By Addressing The Social Determinants Of Health, 35 H A.
1416 (2016); Mary Crossley, Black HealthM atters: Disparities, Community Health, and Interest Convergence,
22 M. J. R & L. 53, 61–62 (2016) (‘wide agreement exists that social determinants contribute
signicantly to health disparities’).
12 •The health equity mandate
that have created an unequal distribution of resources among communities.85 These
structural inequities86 manifest in dierential social determinants of health.87
The housing example is illustrative. The process of ‘redlining,’ which began during
the New Deal, prevented African Americans from obtaining mortgages while simulta-
neously providing White Americans funding to become homeowners.88 That funding
allowed White people to purchase homes in the suburbs, where their growing wealth
was then used to set up better schools. Meanwhile, resources were drained from
city schools. The process resulted in the sorting of people into class-dierentiated,
resource-rich and resource-poor neighborhoods.89
This history manifests, today, in racial minorities continuing to have lesser access to
safe housing and to quality education.90 And the fact of poorer housing conditions and
inferior educational opportunities ultimately leads to disadvantages in achieving full
health potential.91 This section focuses on how the social determinants of health—
income, education, housing, access to healthy food, and public safety—cause health
inequity.92
II.B.i. Social Determinants of Health and Health Inequity
To understand how social determinants of health disadvantage marginalized groups
from achieving their full health potential, it is helpful to begin with a discussion of
stress. Stress is a well-established predictor of poor health.93 Prolonged, chronic stress
can bring about wear and tear on the body and ultimately cause premature death.
But stress also harms health in other ways.94 It can negatively impact mental health95
and lead people to self-harming behaviors such as drug, alcohol, or tobacco abuse.96
85 Id.
86 Kilolo Kijakazi, Covid-19 Racial Health Disparities Highlight Why We Need to Address Structural Racism,
U I (Apr. 10, 2020), https://www.urban.org/urban-wire/covid-19-racial-health-dispari
ties-highlight-why-we-need-address-structural-racism (dis cu ss ing how structural racism that facilitated
the well-being of white families and not Black families resulted in unequal opportunities to improve social
determinants of health); Zinzi D. Bailey et al., Structural Racism and Health Inequities in the USA: Evidence
and Interventions, 389 T L 453–1463 (2017), DOI: 10.1016/S0140-6736(17)30569-X.
87 See Social Justice and Health, A P H A, https://apha.org/what-is- pu
blic-health/generation-public-health/our-work/social-justice (last accessed Oct. 28, 2020) (describing
unequal distribution of resources based on ‘race, class, gender, place and other factors.’).
88 See supra note 2 (describi ng how historica l patterns continue to a ect present day health di sparities bet ween
groups).
89 Id. (noting how ‘the quality of neighborhoods and schools signicantly shapes the life trajectory and the
health of the adults and children... and is an important factor in producing health inequity.’).
90 Michele K. Evans, Health Equity-Are We Finally on the Edge of a New Frontier?, 383 N. E. J. M 997
(Sept. 10, 2020) (describing how recent work suggests that political actions set the stage for today’s health
inequities).
91 See Ruqaiijah Yearby, Breaking The Cycle of ‘Unequal Treatment’ with Health Care Reform: Acknowledging and
Addressing the Continuation of Racial Bias, 44 C. L. R . 1281, 1294 (2012).
92 See supra note 36; see also M M, T S S: H S S
A O H L 1–2 (2004).
93 Abiola Keller et al., Does the Perceptionthat Stress Aects Health Matter? The Association with Health and Mor-
tality, 31 H P. 677 (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3374921/
pdf/nihms357494.pdf.
94 Id.
95 Id.
96 Id.
The health equity mandate •13
It can prevent positive sleep habits that are essential for good health.97 And it can
lead to a decrease in healthy activities such as exercise.98 ‘The unequal distribution
of stressors is believed to be a key mechanism that explains health disparities among
socially disadvantaged communities.’99
A lot of things cause health-harming stress. Living in unsafe housing conditions or
nothavingsucientemploymentincometocoverthecostsoflivingcreatesstress.Fear
of discrimination by police is a tremendous source of stress.
Being the victim of discrimination is strongly linked to stress100 and ultimately to
poorer health outcomes.101 A lot of groups feel the stress of discrimination in our
society. A recent national poll found that 92 per cent of Black Americans believe that
Black people are discriminated against in America.102 Seventy-eight per cent of Latinx
respondents said that Latinx people were discriminated against in America,103 and
75 per cent of Native American respondents reported discrimination against Native
Americans.104 Thepollalsofoundthat90percentofLGBTQindividualsfelttherewas
discrimination against them,105 and 68 per cent of women felt there was discrimination
in America on the basis of gender.106
But it is not just stress that creates health inequity. Consider how environmental
factors like poor air and water quality directly impact health. Poor air leads to ‘pre-
mature death, cancer, and long-term damage to respiratory and cardiovascular sys-
tems.’107 Although the U.S. Environmental Protection Agency (EPA) reports positive
trends in improving air quality and reducing air pollution, it reports that nonetheless,
‘[a]pproximately 82 million Americans lived in counties with air quality concentra-
tions above the level of one or more [National Ambient Air Quality Standards] in
97 Id.
98 Id.
99 See supra note 42.
100 Brigette A. Davis, Discrimination: A Social Determinant of Health Inequities, H A (Feb. 25,
2020), https://www.healthaairs.org/do/10.1377/hblog20200220.518458/full/ (nding discrimination
to be associated with mental illness and worse mental health outcomes).
101 David R. Williams et al., Racial Dierences in Physical and Mental Health: Socioeconomic Status, Stress, and
Discrimination, 2 J. H P. 335 (1997) (linking experience of discrimination with worse health
outcomes).
102 See Discrimination in America: Experiences and Views of Aican Americans, R W J
F (Oct. 2017), https://www.rwjf.org/content/dam/farm/reports/reports/2017/
rwjf441128.
103 See Discrimination in America: Experiences and Views of Latinos, R W J F
(Oct. 2017), https://www.rwjf.org/content/dam/farm/reports/surveys_and_polls/2017/rw jf441402.
104 See Discrimination in America: Experiences and Views of Native Americans, R W J
F (Nov. 2017), https://www.rwjf.org/content/dam/farm/reports/surveys_and_
polls/2017/rwjf441678.
105 See Discrimination in America: Experiences and Views of LGBTQ Americans, R W J
F (Nov. 2017), https://www.rwjf.org/content/dam/farm/reports/surveys_and_
polls/2017/rwjf441734.
106 See Discrimination in America: Experiences and Views of American Woman, R W J
F (Dec. 2017), https://www.rwjf.org/content/dam/farm/reports/surveys_and_
polls/2017/rwjf441994.
107 See Environmental Health, O D P H P, https://www.hea
lthypeople.gov/2020/topics-objectives/topic/environmental-health (last accessed Oct. 8, 2020).
14 •The health equity mandate
2019.’108 Also, the EPA estimates that in 2017, 22 million people drank water from
systemsthatdidnotmeetpublichealthstandards.
109 Living in substandard housing
conditions with mold or lead paint or other hazards including inadequate heating and
sanitation also negatively impact health.110 Those who are subjected to such health-
reducing environments are disproportionately poor, less educated, and from certain
racial groups.111
Education is commonly regarded as another major factor in health inequity. There
are many theories about why lower levels of education are so closely correlated with
worse health outcomes. Some posit that lower education can mean worse employment
prospects, lower earning potential, and less likelihood of good insurance coverage and
that lower education is really a proxy for poverty.112 While studies have conrmed that
to be true, others have found that even when controlling for income and employment,
less education is still correlative with worse health.113 One possibility is that education
imparts values and skills that are important to attaining good health114 or that psycho-
social factors associated with lower education levels also lead to health harms.115 What
is clear is that those with lower educational attainment have higher rates of most major
diseases, including diabetes, circulatory diseases, and several forms of mental illness.116
Inability to access healthy food or transportation that would allow access to health-
improving resources also produces health inequity. These basic services, outside the
realm of clinical healthcare, make a tremendous impact at the individual and the
community-level on health outcomes.117
108 E A, https://gispub.epa.gov/air/trendsreport/2020/#home (last
accessed Oct. 28, 2020).
109 Report on the Environment: Drinking Water, U.S. E P A, https://www.e
pa.gov/report-environment/drinking- water (last accessed Nov. 1, 2020).
110 Environmental Health, O D P H P, https://www.hea
lthypeople.gov/2020/topics-objectives/topic/environmental-health (last accessed Oct, 8, 2020).
111 See Gary Adamkiewicz et al., Environmental Conditions in Low-income Urban Housing: Clustering and
Associations with Self-reported Health, 104 A. J. P H 1650 (2014); Gary W. Evans & Lyscha
A. Marcynyszyn, Environmental Justice, Cumulative Environmental Risk, and Health Among Low-and middle-
income Children in Upstate NewYork, 94 A. J. P H1942 (2004); James W. Kriegeret al., Asthma
and the Home Environment of Low-income Urban Children: Preliminary Findings om the Seattle-King County
Healthy Homes Project , 77 J. U H 50 (2000).
112 James Krieger & Donald L. Higgins, Housing and Health: Time Again for Public Health Action, 92 A J
P H 758 (2002), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1447157/pdf/0920758.
pdf. (nding ‘[t]hose with lower income not only had limited resources useful in maintaining health, but
also may have experienced anxieties that exacerbate health problems.’).
113 See Anna Zajacova & Elizabeth M. Lawrence, The Relationship Between Education and Health: Reducing
Disparities Through a Contextual Approach, 39 A. R. P H 273 (2018), https://www.a
nnualreviews.org/doi/pdf/10.1146/annurev-publhealth-031816-044628.
114 See supra note 21.
115 Id.
116 Krupa Patel et al., Integrating Care for Patients With Chronic Liver Disease and Mental Health and Substance
Use Disorders, 35 F. P. S14 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6375404/
pdf/fp-35- 3s-s14.pdf. (rates of major circulatory diseases, diabetes, liver disease, and several psycholog-
ical symptoms (sadness, hopelessness, and worthlessness) show higher rates among adults with lower
educational attainment.).
117 Consider also the role that built environment plays in impacting health inequity. Elena Gelormino et al.,
From Built Environment to Health Inequalities: An Explanatory Framework Based on Evidence,2PM
R. 737 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4721462/.
The health equity mandate •15
Finally, it is important to note that because many of these problems are structural
in nature and driven in particular by structural racism,118 problems carry over from
generation to generation and impact even attempts to improve health equity through
clinical care.119 For instance, with lesser educational opportunities, fewer Black Amer-
icans become healthcare professionals. ‘Underrepresentation further intensies health
disparities by limiting the pool of culturally competent clinicians who can oer appro-
priate leadership in both academia and patient care’ or who can combat both explicit
and implicit racism in clinical care.120
Thesesocialdeterminantsofhealthallgiverisetolarge(andpreventable)dier-
ences in health outcomes.121
II.B.ii. Why the Pandemic Has Resulted in
Disparate Health Outcomes
Given the discussion in the prior section, the fact that certain disadvantaged groups
have fared worse during the pandemic than more privileged groups is not surprising.
But also, because of the nature of transmission of the virus, it is also worth noting that
more people of color are essential workers who were not able to shelter at home or
social distance to avoid getting sick.122 Racial minor ities tend to live in more population
dense areas, and with more residents living in a single home, the virus spread more
easily.123
118 See Ruqaiijah Yearby, Structural Racism: The Root Cause of the Social Determinants of Health(Sept. 22, 2020),
https://blog.petrieom.law.harvard.edu/2020/09/22/structural-racism-social-determinant-of-health/.
119 See, eg, W. M B & L A. C, A A H D: A M
H A A P R (2000) (describinghow the consequences
of historical segregation still reverberate today).
120 See DB S, H C D—R H N(1999) (describing
the history of racial segregation and discrimination in healthcare); Alvin Powell, The Costs of Inequality:
Money = Quality Healthcare = Longer Life, T H G (Feb. 22, 2016), https://news.harva
rd.edu/gazette/story/2016/02/money-quality-health- care-longer-life/.
121 See supra note 2 (‘Such structural inequities give rise to large and preventable dierences in health metrics
such as life expectancy, with research indicating that one’s zip code is more important to health than one’s
genetic code.’).
122 See Moyce, supra note 71 (‘Hispanic workers in families with noncitizens were far less likely to have
the ability to work from home than those in families where all members are citizens (14.6% compared
with 31.4%)[.]’); Denise N.Obinna, Essential and Undervalued: Health Disparities of Aican American
Women in the COVID-19 Era, E & H, DOI: 10.1080/13557858.2020.1843604 (‘Given
the disproportionate representation of African American workers in frontline jobs which put them at
greater risk of exposure to COVID-19, it is not unsurprising that a greater %age of mortalities are found
among African Americans and their families.’); Ruqaiijah Yearby & Seema Mohapatra, Systemic Racism,
the Government’s Pandemic Response, and Racial Inequities in COVID-19, E L. J. (forthcoming 2021)
(describing how employment policies contributed to pandemic inequities).
123 See Douglas S. Massey, Residential Segregation and Neighborhood Conditions in US Metropolitan Areas,in
A B: R T T C 391, 410–21 (2001); Monica W.
Hooper et al., COVID-19 and Racial/EthnicDisparities, 323 JAM A 2466, 2466–67 (2020) (‘[R]acial/ethnic
minorities and poor people in urban settings live in more crowded conditions both by neighborhood and
householdassessmentsandaremorelikelytobeemployed in public-facing occupations... that would pre-
vent physical distancing.’); Klaus Desmet & Romain Wacziarg, Understanding Spatial Variation in COVID-
19 across the United States, N B E R, No. w27329 (2020), DOI:
10.3386/w27329;MohsenAhmadietal.,Investigation of Eective Climatology Parameters on COVID-19
Outbreak in Iran, 729 S T E 138705 (2020).
16 •The health equity mandate
Among those who are not essential workers, Black and Latinx Americans lost their
jobs at higher rates than the rest of the population, contributing to higher rates of
poverty and all of the risk factors that come with that.124 Unemployment rates during
the pandemic are higher for both Black Americans and Latinx Americans than White
Americans.125 Black Americans and Latinx Americans have also lost health insurance at
higher rates than White Americans.126 In turn, rates of homelessness increased among
those populations.127 In other words, the pandemic both exemplies structural health
inequity that has always existed, but it also amplied those problems.
II.C. Costs of Health Inequity
The costs of health inequity lie not only in loss of life and quality of life, but also in
societal productivity and economic loss.128
The social justice case for addressing health inequity is clear. In a just and ethical
society, everyone deserves equal rights and opportunities.129 If there are structural and
social barriers to achieving optimal health, that is an injustice that must be remedied.130
Health inequity in the USA has resulted in a striking number of premature deaths.
One study calculated that in a single year, approximately 245,000 American deaths
could be attributed to low education, 176,000 to racial segregation, 172,000 to poverty,
162,000 to low social support, and 119,000 to income inequality.131 These are deaths
that could have been avoided in just 1 year if inequity could be eliminated.132 Another
study comparing premature death rates between races found that during the pandemic,
‘[f]or White mortality in 2020 to reach levels that Blacks experience outside of pan-
demics, current COVID-19 mortality levels would need to increase by a factor of nearly
124 See supra note 71; Hooper, supra note 111; Paul M. Ong, Systemic Racial Inequality and the COVID-19
Renter Crisis, UCLA I I D (Aug. 7, 2020), https://knowledge.
luskin.ucla.edu/wp-content/uploads/2020/12/20200807-Systemic-Racial-Inequality- and-the-COVI
D-19- Renter-Crisis.pdf .
125 See The Employment Situation—July 2020, U.S. B L S (Aug. 7, 2020), https://
www.bls.gov/news.release/archives/empsit_08072020.htm (‘A July 2020 report from the U.S. Bureau of
Labor Statistics documents unemployment ratesof16.1% among Black Americans and 16.7%among Latinx
Americans—signicantly higher than the 12.0% rate among White Americans.’).
126 See Hooper, supra note 111; Anuj Gangopadhyaya et al., As the COVID-19 Recession Extended into the
Summer of 2020, More than 3 MillionA dultsLost Employer-sponsored Health Insurance Coverage and2 Million
Became Uninsured, U I (Sept. 18, 2020), https://www.urban.org/sites/default/les/publi
cation/102852/as-the- covid-19- recession-extended-into-the-summer-of-2020-more-than-3-million- a
dults-lost-employer-sponsored-health-insurance-coverage-and-2- million-became-uninsured.pdf .
127 See Courtney Anderson, Covid, Eviction and Homelessness, S. T L. J. (forthcoming 2021).
128 See supra note 4. (‘Many studies show how shortfalls in health are associated with low economic produc-
tivity and reduced qual ity of life.’).
129 See Dayna Bowen Matthew, Structural Inequality: The Real Covid-19 Threat to America’s Health and How
StrengtheningtheAordableCareActCanHelp, 108 G. L.J. 1679, 1711 (2020).
130 See Arline T. Geronimus, To Mitigate, Resist, or Undo: AddressingStr uctural Inuences on the Health of Urban
Populations, 867 A. J. P H 867 (2000).
131 Sandra Galea et al., Estimated Deaths Attributable to Social Factors in the United States, 101 A J. P
H 1456 (2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3134519/pdf/1456.pdf; see
also Michael Marmot, Social justice, epidemiology, and health inequities, 32 E J. E 537 (2017),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5570780/.
132 See also John N. Newton, Counting Early Deaths Due to Socioeconomic Inequality, 5TLP
H E6 (2020), https://www.thelancet.com/action/showPdf?pii=S2468-2667%2819%2930242-7
(counting early deaths due to inequity in Europe).
The health equity mandate •17
6.’133 These costs in loss of life do not even account for losses in quality of life for those
whodonotsuerearlymortality.
134
The economic costs of inequity are also tremendous. Overall healthcare costs in the
USA are high—in fact higher than any other industrialized country.135 Even without
a promise of universal healthcare, the USA already spends almost one-h of its
gross domestic product on healthcare costs.136 That is almost 50 per cent more than
comparable countries.137
There are many drivers of this high cost, but certainly inequity is an important one.
One study determined that over 30 per cent of healthcare costs for racial and ethnic
minorities were a result of structural inequity.138 It estimated that eliminating racial
health disparities could result in savings as high as $230 billion.139 Accordingtoanother
analysis, health disparities cost the USA $93 billion in excess medical care costs and $42
billion in lost productivity.140
With racial and ethnic minorities predicted to become a majority of the U.S. popu-
lation by 2050, the economic costs of inequity will only continue to increase.141 And it
is a vicious cycle. If those who live in poverty have poor health, they are less likely to be
able to rise out of poverty and contribute to the US’ economic output.142
133 See Elizabeth Wrigley-Field, US racial Inequality May be as Deadly as COVID-19, 117 P. N. A.
S. U.S.A 21854 (2020), https://www.pnas.org/content/117/36/21854.
134 See Yongwen Jiang & Jana Earl Hesser,A ssociations Between Health-related Quality of Life and Demographics
and Health Risks. Results om Rhode Island’s 2002 Behavioral Risk Factor Survey, 4 H Q . L
O 1 (2006), https://hqlo.biomedcentral.com/articles/10.1186/1477-7525-4-14.
135 Roosa Tikkanen & Melinda K. Abrams, U.S. Healthcare om a Global Perspective, 2019: Higher Spending,
WorseOutcomes?, T ( Jan. 30 2020), https://www.commonwealthfund.org/pu
blications/issue-briefs/2020/jan/us- health-care- global-perspective- 2019.
136 Id.
137 See Irene Papanicolas et al., Health Care Spending in the United States and Other High-income Countries, 319
JAMA 1024 (2018) (‘The United Statesspent approx imatelytw ice as much as other high-income countries
on medical care.’); Gerard F. Anderson et al., It’s the Prices, Stupid: Why the United States is So Dierent
om Other Countries, 22 H A 89 (2003) (‘U.S. per capita health spending was.. . 44% higher
than Switzerland’s,the countr y with the next-highest expenditure per capita; 83% higher than neighboring
Canada; and 134% higher than the [Organizationfor Economic Cooperation and Development (OECD)]
median.’).
138 William Reilly, Health Disparities are Costly for (U.S.) All, N I H (Apr.
1, 2016), https://obssr.od.nih.gov/health-disparities-are-costly-for-u-s-all-think-about-it-in-april-and-
beyond/; see also Dana Brown, Single Payer would be a Good Start, but Real Health Equity Means Tack-
ling Economic Disparities, D C (Aug. 14, 2017), https://thenextsystem.org/
learn/stories/single-payer-would- be-good-start-real-health-equity-means- tackling-economic (‘Not only
are countless lives needlessly lost because of these inequities, but they come at a price of $300 billion a year
in lost wages, healthcare costs and premature death, making a pretty good business case for addressingthese
harmful disparities.’).
139 Id.
140 Ani Turner, The Business Case for Racial Equity, A Strategy for Growth,W.K.KF(Apr.
2018), https://altarum.org/publications/the-business- case-for-racial-equity-a- strategy-for-growth; See
The Economic Case for Health Equity, A, https://www.astho.org/Programs/Health-Equity/Economi
c-Case- Issue-Brief/ (last accessed Nov. 1, 2020).
141 See Jeery S. Passel & D’Vera Cohn, U.S. Populations Projections: 2005–2050, P R
C (Feb. 11, 2008), https://www.pewresearch.org/hispanic/2008/02/11/us-population-projecti
ons-2005- 2050.
142 See Jessica Mantel, Tackling the Social Determinants of Health: A Central Role for Providers,33G.S.U.L.
R. 217 (2016); see also Tuber c ulo s is, W H O, https://www.who.int/news-
room/fact-sheets/detail/tuberculosis (last accessed Nov 2, 2020). (‘Take deaths from TB as an example—
18 •The health equity mandate
III. INITIATIVES TO ADDRESS HEALTH INEQUITY
AND WHY THEY ARE NOT ENOUGH
There is no doubt that the healthcare industry recognizes the health inequity problem.
All major industry actors are now making at least some attempt to address it. This
part describes those eorts. But it also details the hurdles facing current initiatives and
makes the case for why current eorts alone will not adequately address the problem.
III.A. Current Eorts to Address Health Inequity
Fixing health inequity requires addressing access, quality, and the structural and social
determinants of health. The ACA focused its eorts primarily on improving access and
quality.143
It succeeded, at least in the short term, in reducing rates of uninsurance by allowing
states to expand Medicaid coverage and by oering subsidies to allow lower income
Americans to purchase policies on state exchanges—subsidies that the Biden Admin-
istration temporarily expanded with the American Rescue Plan Act (ARPA).144 But
while 20 million previously uninsured Americans gained coverage because of those
reforms, and perhaps even more with the ARPA, over 10 per cent of the population
is still uninsured.145 Also, the ACA did little to address the problem of underinsurance,
most notably in the private market, which prevents insured individuals from seeking
care because they cannot aord the out-of-pocket expenses.146 Work to improve access
must continue.
The ACA also attempted to legislate quality improvements by moving toward pay-
ment methodologies that rewarded good health outcomes, by requiring public report-
ing of quality metrics, and by incentivizing new care delivery models that rewarded
quality. Healthcare quality still, however, lags behind comparable countries.147
hits young adults in developing countries who then cannot contribute to improving the economiccondition
of their families’).
143 While access was the primary focus, the ACA did also make some structural changes in aid of health equity,
including the addition of ‘minority health oces’ within the Department of Health and Human Services
and data-collection eorts. See Gwendolyn Roberts Majette, Striving for the Mountaintop-the Elimination of
Health Disparities in A Time of Retrenchment (1968–2018), 12 G. J.L. & M. C R P.
145, 151–52 (2020) (describing the ACA as ‘framework legislation’).
144 See Patient Protection and Aordable Care Act of 2010, Pub. L. No. 111–148, 124 Stat. 119 (2010),
(codied as amended at 42 U.S.C. § 18001).
145 See Rachel Gareld, Kendal Orgera & Anthony Damico, The Uninsured and the ACA: A Primer- Key
FactsaboutHealthInsuranceandtheUninsuredamidstChangestotheAordableCareAct,KFF (Jan. 25,
2019). Trump Administration eorts to sabotage the ACA and the intervening COVID-19 pandemic have
certainly contributed to increased rates.
146 See Christopher Robertson, Exposed: Why Our Health Insurance is Incomplete and What Can Be Done
About It (Harvard Univ. Press, 2019).
147 The ACA also contains provisions to develop comparative research models to study the eectiveness of
medical treatments and various other projects to reducemedical error and improve health outcomes. It also
requires collection of race and ethnicity data and trainingof a d iverseworkforce. See Patient Protection and
Aordable Care Act of 2010, Pub.L. No. 111–148, 124 Stat. 119 (2010), (codied as amended at 42 U.S.C.
§ 18001). The ACA also reauthorizes the Indian Health Care Improvement Act, designed to address
health disparities by investing in preventive health and wellness to benet American Indians and Alaska
Natives. See AordableCareAct,I H S, https://www.ihs.gov/aca/ (last accessed Oct.
21, 2020).
The health equity mandate •19
Aside from addressing access and quality, the ACA did make some changes in
furtherance of health equity. It devoted resources through entities like the Agency
for Healthcare Research and Quality (AHRQ) and the Patient Centered Outcomes
Research Institute (PCORI) to track patient outcomes by race and other variables of
equity.148
It also implemented some structural changes in creating a Deputy Assistant Sec-
retary for Minority Health and created six minority health oces within Health and
Human Services (HHS).149 And it started the process of looking beyond just the
traditional healthcare sector to solve the health equity problem by creating entities
like the Federal Interagency Health Equity Team and the National Prevention Council,
which brings together senior leadership from various federal agencies and oces.150
Other preliminary eorts are also underway—by government agencies, private
insurers, providers, and charitable organizations—to address the structural and social
determinants of health. These innovations are important and many provide direction
for the future. But they are not enough.
III.A.i Government Eorts to Address Social Determinants of Health
Thegovernmentisthemostobviousentitytoaddressthesocialdeterminantsofhealth.
Government assistance programs—both at the state and federal levels—are designed
to address most of the major categories of need that ultimately contribute to disparate
health outcomes. The Temporary Assistance for Needy Families (TANF) program
provides temporary funding to families in poverty through a federal–state collaboration
model.151 The Supplemental Nutrition Assistance Program (SNAP) supplements the
food budget of needy families.152 The U.S. Department of Housing and Urban (HUD)
provides funding to states, which in turn provide access to low-income housing.153
The U.S. Department of Labor provides unemployment benets to eligible workers
through a joint state–federal program. To the extent that poverty, food insecurity,
homelessness, and unemployment are the implicated needs, there are government
programs responsible for addressing all of these issues.
Historically, these assistance programs have had little to no interaction with the
Department of Health and Human Services and the Centers for Medicareand Medicaid
Services, which have focused narrowly on providing access to clinical healthcare. Over
the last decade, however, HHS, as well as CMS in particular, has started to grapple with
the role it can play outside of the strict provision of clinical care. In 2010, in ‘Healthy
148 See Gwendoly n Roberts Majette, Str iving for the Mountaintop-the Elimination of Health Disparities in A Time
of Retrenchment (1968–2018), 12 G. J.L. & M. C R P. 145, 151–52 (2020).
149 Id.
150 See Artiga and Hinton, supra note 17. Arguably, Section 1557 of the ACA, the civil rights provision in the
Act could also be used to promote health equity, although it has not been eectively used for such purposes,
yet. See Dayna Bowen Matthew, StructuralInequality: The Real Covid-19 Threat to America’s Healthand How
Strengthening the Aordable Care Act Can Help, 108 G. L.J. 1679, 1711 (2020).
151 See Policy Basics: Temporary Assistance for Needy Families, C B P P,
https://www.cbpp.org/research/family-income-support/temporary-assistance-for-needy-families (last
accessed Feb. 6, 2020).
152 See Nutrition Assistance, F N S, U.S. D A, https://
www.fns.usda.gov/snap/supplemental-nutrition- assistance-program (last accessed Oct. 21, 2020).
153 See Resources for Individuals, U.S. D H H D, https://www.
hud.gov/program_oces/administration/grants/grantssrc (last accessed Oct. 21, 2020).
20 •The health equity mandate
People 2020’—a set of goals and benchmarks that HHS hoped to achieve in the decade
to follow—it rst committed to: ‘Emphasizing ideas of health equity that address social
determinants of health and promote health across all stages of life.’154
HHS followed up in 2011 with an ‘action plan’ to eliminate racial and ethnic health
disparities. That plan155 committed HHS not only to improve access and quality but
also to provide better data about disparities,156 increasing the number of health profes-
sionals from racial and ethnic minority populations, engaging in cultural competency
training of health professionals, and supporting research and innovation eorts to
address disparities. Notably, the plan did not involve agencies outside the HHS ‘family’
of agencies.
HHS has since undertaken a number of initiatives to implement the action plan.
Alex Azar, Secretary of HHS for the Trump Administration, repeatedly conrmed the
agency’s ‘deep interest’ in addressing social determinants of health.157 And President
Biden’s Secretary of HHS, Xavier Becerra, was chosen for the role partly because of his
commitment to health equity.158
III.A.i.a. Medicaid
Medicaid’s eorts are the furthest along. Medicaid, a federal/state collaboration that
pays the medical costs for people of limited means, serves the greatest population of
individuals for whom social determinants of health aect health outcomes. Because
Medicaid is administered at the state level, it also provides the greatest opportunity for
state- and local-level experimentation.
First, Medicaid programs in some states are requiring insurers to screen for social
and environmental determinants that could lead to poorer health outcomes. Certain
programs are using that information to refer beneciaries to social service agencies that
can help to address those problems.159 For instance, L.A. Care, the largest publicly
operated Medicaid plan in the USA, identies beneciaries who require access to
healthy foods and then refers those beneciaries to other government programs to meet
those needs (eg, to CalFresh, which provides nancial assistance to purchase healthy
foods).160
154 See Health Disparities Data, HealthyPeople.gov,https://www.healthypeople.gov/2020/data-search/hea
lth-disparities- data (last accessed Oct. 21, 2020).
155 See HHS Action Plan to Reduce Racial and Ethnic Health Disparities, D H
H S, https://www.minorityhealth.hhs.gov/npa/les/Plans/HHS/HHS_Plan_complete.
pdf (last accessed Oct. 21, 2020).
156 See Department of Health and Human Services Sets Public Health Objectives for the next Decade in Healthy
People 2030, N I H, https://orwh.od.nih.gov/in-the- spotlight/all-articles/
department-health- and-human-serv ices-sets-public- health-objectives (last accessed Oct. 21, 2020).
157 See Leora I. Horwitz et al., Quantifying Health Systems’ Investment Determinants of Health, By Sector, 2017–
19, 39 H A 1 (Feb. 2020), DOI: 10.1377/hltha.2019.01246.
158 See SherylGayStolberg and MichaelD.Shear,Biden Picks Xavier Becerra to Lead Health and Human Service,
NY T (Dec. 6, 2020), https://www.nytimes.com/2020/12/06/us/politics/xavier-becerra-hhs-hea
lth-secretary.html.
159 Although some do not yet have that capacity. See Samantha Artiga & Elizabeth Hinton, Beyond Health
Care: The Role of Social Determinants in Promoting Health and Health Equity, KFF (May 10, 2018), https://
www.k.org/racial-equity-and-health-policy/issue-brief/beyond-health-care-the-role-of-social-determi
nants-in- promoting-health-and-health-equity/.
160 See Shelby Livingston, In Depth: Payers Can’t Control Costs Without Social Determinants of Health
Model M H (Aug. 25, 2018, 1:00 AM), https://www.modernhealthcare.com/arti