Module 01 Course Project - Legislative Action

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DOI: 10.1177/1073110518821976

The Future of Health Equity in America: Addressing the Legal and Political Determinants of Health Daniel E. Dawes

F or more than 225 years, the United States has struggled with aligning the constitutional notions of equal protection and general wel-

fare to our health laws and policies, which resulted in a chasm between researchers and the patients who need their discoveries, and a chasm between clini- cians and the communities that have been locked out of the health care system. Despite this struggle, there have been lawmakers and advocates who have worked assiduously throughout the years to uphold the integ- rity of scientific research and build longer and stronger bridges to ensure that the discoveries made in a lab, a clinical setting or in the field translated positively to all communities, including those that have historically been marginalized and underserved such as racial and ethnic minorities, women, children, veterans, rural individuals, and most recently LGBTQ individuals.

Today’s struggle to increase access to health care for our most vulnerable populations parallels the struggle 150 years ago when abolitionists worked tirelessly to increase access to care for poor whites and newly freed slaves and mental health champions labored assidu- ously to increase access to and improve behavioral health services in the United States for people with mental illness or substance use disorders.1 In 1865, the federal government attempted to address the social determinants of health by enacting the first compre- hensive health law, An Act to establish a Bureau for the Relief of Freedmen and Refugees,2 giving these vulnerable population groups who were displaced by the Civil War, access to food, education, employment, housing, and health care.

However, after seven years, that effort to address the social determinants of health, reduce health dis- parities, and advance health equity3 was terminated by lawmakers.4 It would take more than one hundred years before there was another coordinated federal effort to enact a law to address the disparities in health status among racial and ethnic minorities and lower socioeconomic status individuals.5 Thanks in part to a landmark report by the Institute of Medicine, Health Care in a Context of Civil Rights,6 which highlighted the latest evidence concerning minority health and health disparities, the Reagan administration through Secretary of Health and Human Services Margaret Heckler, recognized that while the overall health of the nation had been improving the health of African

Daniel E. Dawes, J.D., is the author of 150 Years of Obam- acare, co-founder of the Health Equity Leadership and Ex- change Network (HELEN), associate professor at Nova South- eastern University, and Senior Adviser & General Counsel to the Satcher Health Leadership Institute at Morehouse School of Medicine.

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Dawes

Americans and other racial and ethnic minorities was alarming.

As a result, the Reagan administration convened a task force to more closely examine this issue. It was the first federal attempt to examine racial and ethnic health disparities in order to more fully understand why they had resulted, what the impact was, and what policies and programs should be authorized to address and rectify the problem. This effort led to the devel- opment and passage of two piecemeal, but significant statutes: the Disadvantaged Minority Health Improve- ment Act during the George H.W. Bush administra- tion in 1990, and the Minority Health and Health Dis- parities Research and Education Act during the Bill Clinton Administration in 2000. Collectively, these two federal policies resulted in increased attention to and investments in studying and developing solutions to the issues impacting minority health and health disparities. From there, further research ensued and led to the publication of over 6,000 scholarly articles, which informed later public laws and policy, includ-

ing the Patient Protection and Affordable Care Act, the most comprehensive and inclusive health law ever produced and passed by the U.S. Congress intended to advance health equity among all population groups.7 The Patient Protection and Affordable Care Act is a law that in many respects mirrors the Freedmen’s Bureau Act and its protections were intentionally designed to stretch across geographic, socioeconomic, racial, gender, and age groups, all of whom have ben- efited from passage of the law.

Today, our understanding of health disparities dem- onstrates that it is not one factor that has driven the inequities in healthcare and health status, but mul- tiple intersecting determinants, driven in large part by law and policy. This affords researchers, lawmakers and the legal community an opportunity to address not only the negative outcomes of health dispari- ties, but also the imbalance of inputs resulting from laws and policies which fail to employ an equity lens,

as the United States strives for a more healthy and equitable society. Addressing this complex issue is even more critical today considering the fact that in 25 years, racial and ethnic minorities are expected to comprise a majority of the United States population.8 The problem will only become more pronounced with the rising incidence of obesity and chronic diseases, including mental illness and substance use disorders, the increasingly vulnerable aging population, and the disproportionalities experienced by certain groups in health status and healthcare. Hopefully, policy mak- ers will recognize the shortsightedness of taking a reactionary approach to health policies as has been the case during our nation’s history primarily when a direct threat, outbreak or other national security reason arises. Instead law makers should continue to take a proactive approach to public policy by address- ing the social determinants of health and bolstering minority health efforts in the United States.

From a health equity perspective, the implications of the 2016 election were clear: the United States

would, once again, wrestle with whether and how to advance universal health coverage and prioritize health equity as lawmakers engaged in contentious debates over repealing and replacing the Affordable Care Act. The 2018 election marked a critical juncture for the health law and the United States — one that will determine whether the country embraces a more accessible, equitable, and inclusive health system or reverse course toward a system of increasing health disparities.

The big question is whether opponents of the Affordable Care Act will be able to follow through and successfully repeal the longest surviving health reform law in America prioritizing health equity, which provided the greatest expansion of mental health reforms, health insurance protections, and pre- vention and public health programs. Or will propo- nents of the Affordable Care Act be able to beat back its repeal unlike advocates of the Freedmen’s Bureau

Today, our understanding of health disparities demonstrates that it is not one factor that has driven the inequities in healthcare and health status, but multiple intersecting determinants, driven in large part by law and policy.

This affords researchers, lawmakers and the legal community an opportunity to address not only the negative outcomes of health disparities, but also the imbalance of inputs resulting from laws and policies which fail to employ an

equity lens, as the United States strives for a more healthy and equitable society.

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Act. Although the Affordable Care Act has survived 11 brushes with death, eighteen successful legislative efforts that repealed or modified certain provisions, including the zeroing out of the penalty associated with the law’s individual mandate, and several admin- istrative attempts to undermine the law, it remains to be seen whether those actions have collectively struck at the heart and guts of the law to a degree that will lead to its unraveling.

No other health law has extended mental health parity protections and expanded civil rights protec- tions, required greater attention to diversity in com- parative effectiveness research, ensured that critical benefits such as maternity, behavioral health, reha- bilitative and habilitative coverage were included as essential health benefits, authorized the largest investment in public health to tackle the most press- ing chronic diseases in communities, especially those disparately impacted, promoted the integration of behavioral health and primary care, included preven- tive services at no cost to the consumer, and provided other opportunities for health equity-related outreach and education campaigns like the Affordable Care Act has. In the face of strong evidence showing that repealing the ACA would jeopardize health care access and protections for millions of Americans, roll back health equity gains, and exacerbate health care costs, Democrats and Republicans should continue their efforts to repair the ACA to help stabilize the markets, ease the financial burden on Americans, and advance health equity nationally. As Francis Bacon once stated, “He that will not apply new remedies must expect new evils.”9 If this does not bear truth in the debate around “ObamaCare,” we might still be fighting the battle for a more accessible, equitable, and inclusive health sys- tem 150 years from now.

Note The author has no conflicts to declare.

References 1. D. Dawes, 150 Years of ObamaCare (Baltimore, MD: Johns

Hopkins University Press, 2016). 2. HR 51, An Act to establish a Bureau for the Relief of Freed-

men and Refugees, was introduced in the second session of the 38th Congress of the United States and signed into law by President Abraham Lincoln on March 3, 1865, a little over one month before he was assassinated.

3. The World Health Organization in 1985 defined health equity as the notion “that ideally everyone should have a fair oppor- tunity to attain their full health potential and, more pragmat- ically, that no one should be disadvantaged from achieving this potential.” World Health Organization (1985). Targets for Health for All. Copenhagen: World Health Organization Regional Office for Europe.

4. The Freedmen’s Bureau Act struggled to prevail against the political head winds determined to undermine it, and Con- gress eventually failed to muster the votes to reauthorize the law in 1969 after doing so every year since it was passed, and the Freedmen’s Bureau was officially terminated in 1872.

5. The Disadvantaged Minority Health Improvement Act of 1990 was signed into law by President George H.W. Bush and codified into law programs and policies that were estab- lished by the Reagan administration’s Secretary of Health and Human Services, Margaret Heckler.

6. Institute of Medicine, Health Care in a Context of Civil Rights (Washington, D.C.: National Academy of Sciences Press, 1981).

7. D. Dawes, supra note 1. 8. S.L. Colby and J.M. Ortman, “Projections of the Size and

Composition of the U.S. Population: 2014 to 2060,” Current Population Reports (2014), P25-1143, U.S. Census Bureau, Washington, DC.

9. F. Bacon, “Forbes Quotes: Thoughts On The Business Of Life,” available at <https://www.forbes.com/quotes/2913/> (last visited October 16, 2018).

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