Health Justice Strategies to Combat the Pandemic: Eliminating Discrimination, Poverty, and Health Disparities During and After COVID-19

Experience with past epidemics made it predictable that people living in poverty, people of color, and other marginalized groups would bear the brunt of the coronavirus pandemic due to the social determinants of health (SDOH). The SDOH are subdivided into structural and intermediary determinants. Structural determinants include forms of subordination (discrimination and poverty) that influence intermediary determinants (health care, housing, and employment). The COVID-19 pandemic has magnified and accelerated the harms caused by these determinants, limiting health equity among historically marginalized groups and low-income populations. Black, Latino, and Indigenous populations have higher COVID-19 infection and mortality rates, higher rates of unemployment, less access to health care, and greater risk of eviction during the pandemic, among other significant inequities. Without robust and swift government interventions, the impacts of the pandemic will be wide and deep. This Article analyzes mechanisms of these determinants in the pandemic setting and provides solutions using the health justice framework. The health justice framework offers three principles: structural, supportive, and empowering. First, legal and policy responses must address the structural determinants of health. Second, interventions mandating * Emily A. Benfer, Visiting Professor of Law at Wake Forest University School of Law; LLM, Georgetown Law Center; J.D., Indiana University Robert H. McKinney School of Law. Seema Mohapatra, tenured Associate Professor of Law and Dean’s Fellow at Indiana University Robert H. McKinney School of Law; J.D., Northwestern University School of Law; M.P.H. in Chronic Disease Epidemiology, Yale University School of Public Health; B.A. (Natural Sciences, with a minor in Women’s Studies), Johns Hopkins University. Lindsay F. Wiley, Professor of Law; Director, Health Law and Policy Program, American University Washington College of Law; J.D., Harvard Law School; M.P.H., Johns Hopkins School of Public Health; A.B., Harvard University. Ruqaiijah Yearby, Professor of Law and Member of the Center for Health Law Studies, Saint Louis University, School of Law; Co-Founder and Executive Director, Institute for Healing Justice, Saint Louis University; J.D., Georgetown University Law Center; M.P.H. in Health Policy and Management, Johns Hopkins School of Public Health.; B.S. (Honors Biology), University of Michigan. We would like to thank Crystal Lewis, Health Equity and Policy Fellow, Saint Louis University, School of Law, for her contribution. Authors are listed in alphabetical order to denote equal contributions to the article. 1 Benfer et al.: Health Justice Strategies to Combat the Pandemic: Eliminating Dis Published by Yale Law School Legal Scholarship Repository, 2020 HEALTH JUSTICE STRATEGIES 123 healthy behaviors must be accompanied by material support and legal protections to enable compliance while minimizing harms. Third, historically marginalized communities must be engaged and empowered as leaders in the development and implementation of interventions and the attainment of health justice. To demonstrate the application of these principles, this Article focuses on two structural determinants of health (discrimination and poverty) and three intermediary determinants (health care, housing, and employment). 2 Yale Journal of Health Policy, Law, and Ethics, Vol. 19 [2020], Iss. 3, Art. 3 https://digitalcommons.law.yale.edu/yjhple/vol19/iss3/3 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS 19:3 (2020) 124 TABLE OF CONTENTS INTRODUCTION ................................................................................................ 125 I. DISCRIMINATION, POVERTY, AND BARRIERS TO HEALTH IN THE PANDEMIC SETTING ............................................................................ 130 II. THE HEALTH JUSTICE FRAMEWORK FOR PANDEMIC RESPONSE ........... 136 III. HEALTH JUSTICE IN HEALTH CARE ......................................................... 141 A. HEALTH CARE IS A SOCIAL DETERMINANT OF HEALTH .......................... 141 B. HEALTH CARE DISCRIMINATION AS A BARRIER TO HEALTH JUSTICE DURING THE COVID-19 PANDEMIC .............................................................. 143 C. APPLYING THE HEALTH JUSTICE FRAMEWORK TO ACHIEVE HEALTH CARE EQUITY ................................................................................................ 146 IV. HEALTH JUSTICE IN HOUSING .................................................................. 147 A. HOUSING IS A SOCIAL DETERMINANT OF HEALTH ................................... 147 B. HOUSING DISCRIMINATION AS A BARRIER TO HEALTH JUSTICE DURING COVID-19 ....................................................................................... 150 C. APPLYING THE HEALTH JUSTICE FRAMEWORK TO ACHIEVE HOUSING EQUITY .......................................................................................................... 157 V. HEALTH JUSTICE IN EMPLOYMENT ........................................................... 162 A. EMPLOYMENT AS A SOCIAL DETERMINANT OF HEALTH ..................... 162 B. EMPLOYMENT DISCRIMINATION AS A BARRIER TO HEALTH JUSTICE DURING COVID-19 ....................................................................................... 164 C. APPLYING THE HEALTH JUSTICE FRAMEWORK TO ACHIEVE EMPLOYMENT EQUITY .................................................................................. 168 CONCLUSION .................................................................................................... 171 3 Benfer et al.: Health Justice Strategies to Combat the Pandemic: Eliminating Dis Published by Yale Law School Legal Scholarship Repository, 2020 HEALTH JUSTICE STRATEGIES