Flattening the Curve and Closing the Gap: The Civil Rights of Health During a Global Pandemic

PUBLISHED

Angela P. Harris is Professor Emerita at the UC Davis School of Law and the 2019-20 Visiting William H. Neukom Fellows Research Chair in Diversity and Law at the American Bar Foundation.

Aysha Pamukcu is the founder of Movement Praxis and the 2019-2020 Fulcrum Fellow at ChangeLab Solutions.

PUBLISHED

Angela P. Harris is Professor Emerita at the UC Davis School of Law and the 2019-20 Visiting William H. Neukom Fellows Research Chair in Diversity and Law at the American Bar Foundation.

Aysha Pamukcu is the founder of Movement Praxis and the 2019-2020 Fulcrum Fellow at ChangeLab Solutions.

healthcare human right“We’re all in this together” has become a familiar call for strengthening our sense of community and social responsibility during the COVID-19 pandemic. Although this phrase can obscure deep social inequities, this recognition of our interdependence presents an opportunity to connect economic justice and public health. COVID-19 has instilled a new public understanding that our collective health and safety is contingent on the fate of the most marginalized and least prosperous among us.

Author Anand Giridharadas has asked, “Take note today of the people who come within infecting distance of you. Are you confident they all have access to the care they need to be healthy—and keep you healthy?” We could easily expand that question: how confident are we that those around us have paid sick leave, decent working conditions, and housing where they can safely quarantine?

But even if the US strengthened its economic policies and successfully “flattened the curve” overall, we wouldn’t make a dent in the shocking disparities in mortality rates that are appearing in our daily news feeds. COVID-19 may endanger us all, but it is far more costly to some than others.

In a forthcoming article in the UCLA Law Review, we — a critical race feminist and a health justice attorney — call for a campaign by public health advocates, civil rights lawyers, and frontline communities for “the civil rights of health.” (We wish to gratefully acknowledge that this article was written with the support of Changelab Solutions and the Robert Wood Johnson Foundation.) We argue that policy should take a “targeted universalism” approach – working to address universal and particular needs at the same time by promoting policies that help everyone while providing the greatest benefit to the most marginalized. Although we wrote this article before the COVID-19 outbreak, we think its principles are fully applicable to our current plight.

Well-established literature on the social determinants of health shows us that individual choices determine our health outcomes far less than we think. The civil rights of health begin with a recognition that the cause of unjust health disparities is, quite simply, subordination. Based on the research, we identify three broad and interacting pathways through which subordination is written on the body: population, place, and power. COVID-19 has taken all three pathways in its spread across the US, resulting in unjust and racialized health outcomes.

During April — designated as National Minority Health Monthresearchers increasingly documented the disparate racial impacts of COVID-19. Based on the incomplete data available across states, the national COVID-19 mortality rate for African Americans is 2.3 times higher than the rate for Asians and Latinxs, and 2.6 times higher than the rate for Whites.

These overall disparities were dwarfed by disparities in the nation’s “hot spots.” In Chicago, for instance (where Angela is sheltering in place), Black people were dying at six times the rate of White people. In the San Francisco Bay Area (where Aysha is sheltering in place), three of the hardest-hit counties reported Latinx accounted for a disproportionate share of confirmed COVID-19 cases. And in San Francisco, a recent neighborhood study confirmed racial disparities in COVID-19 cases as well as economic ones: the majority of those who tested positive for COVID-19 are low-income or experiencing economic hardship—and many provide essential services.

Illinois and California are not unique in this regard. Similar trends are unfolding across the country, from New York (where the virus was, by the end of April, twice as deadly to Latinx and Black people than it was to White people) to Michigan (where Black people make up about 14% of the state’s population but 40% of its COVID-19 deaths, mostly in Detroit) to Wisconsin (where Black residents made up nearly half of the state’s COVID-19 deaths, despite making up just 6% of Wisconsin’s total population).

These racial disparities in death rates are caused by — and amplified by — other social and economic inequities. Those who are homeless have no feasible options to “shelter in place.” People incarcerated in prisons and detention centers are prevented from practicing physical distancing safety measures. Low-wage workers are classified as essential and yet are not provided with appropriate protective equipment and paid sick leave. As the weeks pass, we are confronted with mounting examples of already-broken systems that now pose a deadly public safety threat.

Yet we also know that neither race nor income can shield anyone from the virus — or the economic devastation following in its wake. Even those of us fortunate enough to hold secure white-collar jobs, for instance, are struggling with our national failure to recognize caregiving as a public good and economic asset. This failure is visible across our society, from the exhaustion of working parents (whose lack of childcare creates productivity losses to the tune of $57 billion per year) to the fatality rates in our nursing homes (accounting for one third of national COVID-19 deaths).

We argue in our article that one way to forge an alliance among civil rights lawyers, marginalized communities, and public health advocates is to recognize that oppression is a health issue. Put simply, justice strengthens public health and injustice weakens it. Today, COVID-19 has clearly demonstrated that pandemics — and other disasters — thrive on inequality.

We’ve already noted how public health researchers are documenting the ways people of color and other marginalized groups are disproportionately suffering from the virus. Public health data also shows us the importance of place — that where you live affects how long you live. For example, in New York, the neighborhood you live in is predictive of your risk of COVID-19 infection. Our article calls on civil rights advocates to use public health research as a new way of revealing — and dismantling — institutional and structural discrimination.

Part of the problem is a failure of leadership. The World Health Organization has warned that COVID-19 is an “infodemic” as well as a pandemic. The problem lies both in the rapid spread of misinformation and the lack of reliable data on the virus spread and its impacts, which in turn hinders officials from taking effective action.

Not all government entities are rising to the occasion. We see actors in the federal government promoting unproven cures for the virus and using racially inflammatory language against Asian communities. Even the Centers for Disease Control and Prevention (CDC) chose to look the other way on some of the disparate effects of COVID-19, by initially only releasing location and age data regarding the pandemic while ignoring race.

In contrast, local communities across the country are stepping up. For example, in April Chicago Mayor Lori Lightfoot announced the creation of a racial equity rapid response team to collect and share demographic data, and to work with community organizations to prepare what she called a “hyperlocal” response to racialized disparities in illness and death. The CDC and local public health authorities must follow the lead of communities like Chicago, and track coronavirus racial data alongside other demographic categories relevant to health disparities. This kind of robust and disaggregated data enables officials to properly prioritize their efforts. In the Bay Area, for instance, local governments and health officials are increasingly targeting medical and financial resources where they are most needed.

We can build on these efforts by aligning public health data collection and interventions with a civil rights focus on eliminating oppression. We suggest that public health practitioners explicitly connect unjust health outcomes across population and place with subordination. Doing so will allow advocates to better address the root causes of poor health.Chicago’s work with “hyperlocal” community organizations also illustrates the importance of a third ally in the civil rights of health: frontline communities themselves. While an alliance of law and public health can be a force for good, they need accountability partners to ensure they do not endanger and stigmatize already-vulnerable communities.

For example, advocates have noted parallels with the battle against HIV/AIDS, where social stigma against vulnerable groups intersected harmfully with neglect and even overt discrimination from public officials. And indeed, social justice movements, led by the people most affected by subordination, can help resist harmfully inaccurate narratives, like some groups being more biologically vulnerable than others, and challenge racial stereotypes used as explanations for gaps in health outcomes.

Social movements can also partner with officials to fill in the gaps in government response. Black Lives Matter, for example, posted a call for accurate and complete data on the racialized impact of the pandemic. And marginalized communities aren’t simply awaiting government action, and have drawn on the principles of mutual aid to create self-help networks for communities left out of government interventions.

Today’s social movements are seizing the opportunity to change the underlying narratives that influence policy. For too long, health has been commonly understood to be a private good that people could enjoy by making the “right” decisions, like buying insurance, eating kale, or lifting weights. Today, with the help of public health, civil rights, and social justice advocates, economic justice is being reframed as a public good that benefits everyone’s health.

COVID-19 has demonstrated the dangers of treating the social determinants of health as private goods reserved for the fortunate few. We argue that it’s time to treat good jobs, affordable and adequate housing, clean air and water, and above all, anti-discrimination law and policy as health interventions that can both flatten the curve for everyone and close the unjust gap between the privileged and the subordinated.

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