Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-26T18:49:37.034Z Has data issue: false hasContentIssue false
  • English
  • Français

Health Disparities and the Law: Wrongs in Search of a Right

Published online by Cambridge University Press:  06 January 2021

Mary Anne Bobinski
Mary Anne Bobinski*
Affiliation:
Health Law & Policy Institute, University of Houston Law Center
Get access Rights & Permissions [Opens in a new window]

Extract

Healthy People 2010 provides our Nation with the wide range of public health opportunities that exist in the first decade of the 21st century. With 467 objectives in 28 focus areas, Healthy People 2010 will be a tremendously valuable asset … . Healthy People 2010 reflects the very best in public health planning—it is comprehensive, it was created by a broad coalition of experts from many sectors, it has been designed to measure progress over time, and, most important, it clearly lays out a series of objectives to bring better health to all people in this country.

The current responses to the traditional health perils … have been weakened. At the same time, it seems to this outsider as though the entire public health establishment is united around the proposition that massive public action should be taken to deal with the new “epidemics,” such as obesity and diabetes … . But the use of the term “epidemic” is just the wrong way to think about this issue. There are no noncommunicable epidemics … . Yet the designation [of] obesity as a public health epidemic is designed to signal that state coercion is appropriate … .

Type
Research Article
Information
American Journal of Law & Medicine , Volume 29 , Issue 2-3 , June 2003 , pp. 363 - 380
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

†

The author appreciates the research support of Andrew J. Fisk (J.D. anticipated 2004), Tracy Sepehriazar (J.D. anticipated 2003) and the financial support provided by the University of Houston Law Foundation.

References

1 Donna E. Shalala, Message from the Secretary in 1 U.S. DEP't OF HEALTH & HUMAN SERV. (HHS), HEALTHY PEOPLE 2010 (2000) [hereinafter HEALTHY PEOPLE 2010], available at http://www.health.gov/healthypeople. For clarity, this Article will cite to “Healthy People 2010,” the volume number and, where necessary, the focus area number and page number (e.g., 1 Healthy People 2010, 9-8 to 9-12).

2 RICHARD A. EPSTEIN, IN DEFENSE OF THE “OLD” PUBLIC HEALTH: THE LEGAL FRAMEWORK FOR THE REGULATION OF PUBLIC HEALTH *35-36 (John M. Olin Program in Law & Econ., Univ. of Chi. Law Sch., Working Paper No. 170, 2d Series, 2002), available at http://www.law.uchicago.edu/Lawecon/index.html.

3 See infra Part II.A. Tracking disparities in health associated with race and ethnicity can be problematic. Some fear that these differences will be ascribed to genetics rather than other factors, despite substantial evidence that concepts like “race” and “ethnicity” are socially constructed rather than genetically-based. See, e.g., Lee, Sandra Soo-Jin et al., The Meanings of “Race” in the New Genomics: Implications for Health Disparities Research, 1 YALE J. HEALTH POL’Y L. & ETHICS 33 (2001)Google Scholar; Braun, Lundy, Race, Ethnicity, and Health: Can Genetics Explain Disparities?, 45 PERSPECTIVES BIOLOGY & MED. 159 (2002)Google Scholar (expressing concern about misperceptions about biological basis of race); Cooper, Richard S. et al., Race and Genomics, 348 NEW ENGLAND J. MED. 1166 (2003)Google Scholar (questioning whether race is a useful category in medical research or practice).

4 See, e.g., INST. OF MED. (IOM), UNEQUAL TREATMENT: CONFRONTING RACIAL AND ETHNIC DISPARITIES IN HEALTH CARE 1-27 (Brian D. Smedley et al. eds., 2002) [hereinafter UNEQUAL TREATMENT]; 1 HEALTHY PEOPLE 2010, supra note 1, at 11 (the second major goal of the project is to “eliminate health disparities among segments of the population”).

5 1 HEALTHY PEOPLE 2010, supra note 1, at 4, 8, 11, 8-9.

6 See, e.g., EPSTEIN, supra note 2; Rothstein, Mark A., Rethinking the Meaning of Public Health, 30 J.L. MED. & ETHICS 144 (2002)Google Scholar.

7 See generally Rothstein, supra note 6.

8 For a detailed effort to parse apart socioeconomic factors from other factors which might explain disparate treatment, see Gornick, Marian E. et al., Understanding Disparities in the Use of Medicare Services, 1 YALE J. HEALTH POL’Y L. & ETHICS 133 (2001)Google Scholar (analyzing data to demonstrate that regardless of socioeconomic status or race, individuals who used one preventive service were more likely to choose another preventive service and that individuals who quit smoking are more likely to use preventive services); see also Fiscella, Keven et al., Disparities in Health Care by Race, Ethnicity, and Language Among the Insured: Findings from a National Sample, 40 MED. CARE 52 (2002)Google Scholar (finding association between lack of English fluency of Hispanic enrollees and lower levels of healthcare).

9 In some circumstances it may be difficult to separate socioeconomics from other factors such as racism or patient choice. See, e.g., Howard, Daniel L. et al., Distribution of African-Americans in Residential Care/Assisted Living and Nursing Homes; More Evidence of Racial Disparity?, 92 AM. J. PUB. HEALTH 1272 (2002)Google Scholar (finding a high degree of racial segregation in long term care and noting the difficulty of determining cause). Researchers agree that more data is needed to better understand the complex relationships at work. See, e.g., UNEQUAL TREATMENT, supra note 4, at 215-244 (discussing collection of additional, standardized data and need for additional research); Bierman, Arlene S. et al., Addressing Racial and Ethnic Barriers to Effective Care: The Need for Better Data, 21 HEALTH AFFAIRS 91 (2002)Google Scholar.

10 For a summary of the studies on racial and ethnic disparities, see UNEQUAL TREATMENT, supra note 4, at 29-30, 38-79, 285-383 (analyzing and summarizing over 100 studies). The Institute of Medicine study found particularly “convincing evidence” of disparate treatment in cardiovascular care. Id. at 5; see also Schneider, Eric C. et al., Racial Disparities in the Quality of Care for Enrollees in Medicare Managed Care, 287 JAMA 1288 (2002)Google Scholar (noting that when blacks and whites are enrolled in same type of healthcare plan, blacks are less likely than whites to receive various forms of screening and care).

11 Studies on gender-based health disparities are analyzed in Bobinski, Mary Anne & Epps, Phyllis Griffin, Women, Poverty, Access to Care, and the Perils of Symbolic Reform, 5 J. GENDER, RACE & JUSTICE 233 (2002)Google Scholar.

12 See, e.g., Powell, Isaac J. et al., Disease-Free Survival Difference Between African-Americans and Whites After Radical Prostatectomy for Local Prostate Cancer: A Multivariable Analysis, 59 UROLOGY 907 (2002)Google Scholar (noting that death rate for African-American men with prostate cancer is twice the rate for white men; racial disparity in progression-free is survival not explained by a number of non-racial factors); Shavers, Vickie L. & Brown, Martin L., Racial and Ethnic Disparities in the Receipt of Cancer Treatment, 94 J. NAT’L CANCER INST. 334 (2002)Google Scholar (summarizing data on differential cancer treatment and outcomes for racial/ethnic minorities).

13 Although the point may seem obvious, this research is important because many medical conditions can be treated using a range of options. Suppose that a research study demonstrates that members of an ethnic or racial group are likely to receive less aggressive treatment than members of another group. It may be difficult to conclude that the group treated less aggressively has been injured—aggressive medical care may be more risky without providing any offsetting benefits. Combination studies therefore add important evidence about the impact of differential treatment on outcomes.

14 UNEQUAL TREATMENT, supra note 4, at 316-319 (summarizing study); see also Peterson, Eric D. et al., Racial Variation in the Use of Coronary-Revascularization Procedures: Are the Differences Real? Do They Matter?, 336 NEW ENG. J. MED. 480 (1997)Google Scholar.

15 See, e.g., Joselyn, Sue A., Racial Differences in Treatment and Survival from Early-Stage Breast Carcinoma, 95 CANCER 1759 (2002)Google Scholar. Note that some racial disparities in survival rates persist even when African-American women are given appropriate treatment. Id.

16 Akinbami, Lara J. et al., Racial and Income Disparities in Childhood Asthma in the United States, 2 AMBUL. PEDIATRICS 382 (2002)Google Scholar (noting that there were no differences in the prevalence of asthma between these groups).

17 Women fare worse after experiencing a heart attack then men, but the result seems likely to be the product of biology rather than bias. See Fieback, Nicholas H. et al., Differences Between Women and Men in Survival After Myocardial Infarction, 263 JAMA 1092 (1990)Google Scholar (attributing higher death rates for women to non-gender, biological factors); Alter, D.A. et al., Biology or Bias: Practice Patterns and Long-Term Outcomes for Men and Women with Acute Myocardial Infarction, 39 J. AM. COLL. CARDIOLOGY 1909 (2002)Google Scholar (finding older women received less intensive cardiac care than similarly-aged men, but that women's differential survival rate from cardiac events actually improved in older age groups).

18 1 HEALTHY PEOPLE 2010, supra note 1, at 11. Gender-based disparities will not be the focus of this Article. For more information on gender disparities in healthcare and the utility of legal interventions, see generally Bobinski & Epps, supra note 11.

19 1 HEALTHY PEOPLE 2010, supra note 1, at 12 (“These disparities are believed to be the result of the complex interactions among genetic variations, environmental factors, and specific health behaviors.”); see also supra note 10.

20 NAT’L CTR. FOR HEALTH STATS., HEALTH, UNITED STATES, 2002, CHARTBOOK ON TRENDS IN THE HEALTH OF AMERICANS Table 28, available at http://www.cdc.gov/nchs/products/pubs/pubd/hus/02tables.htm (last visited Mar. 11, 2003).

21 Id.

22 See, e.g., id. at Tables 20-25 (neonatal mortality rates analyzed by race and ethnicity of the child and mother) and Table 43 (death rates for HIV/AIDS).

23 Id. at Table 30 (comparing death rates for various conditions based on gender and race). The leading causes of death vary by race and gender as well. Id. at Table 32.

24 1 HEALTHY PEOPLE 2010, supra note 1, at 12 (compared to whites, African-Americans have a forty percent higher rate of death from heart disease, thirty percent higher death rate from all cancers, 200 percent higher death rate from prostate cancer, 700 percent higher death rate from HIV/AIDS, and 600 percent higher rate of death by homicide). Infant mortality rates are twice as high for African-American babies than for white babies. Haynatzka, V. et al., Racial and Ethnic Disparities in Infant Mortality Rates–60 Largest U.S. Cities, 1995-1998, 51 MORBIDITY & MORTALITY WEEKLY REP. 329, 331 (2002)Google Scholar; NAT’L CTR. FOR HEALTH STATS., supra note 20, at Table 30 (death rates for various conditions disaggregated by gender and race/ethnicity), Table 39 (cancer death rates), Table 41 (breast cancer death rates), Table 46 (homicide death rates) and Table 38 (death rates for cerebrovascular disease showing higher death rates for African-Americans of both genders).

25 1 HEALTHY PEOPLE 2010, supra note 1, at 12. The diabetes-related death rate is twice as high for Hispanics than for non-Hispanic whites. Id.

26 Id. The infant death rate for American Indians and Alaska Natives is almost twice that of whites. Id.

27 Id. (noting higher rates of cervical cancer for Vietnamese women).

28 Id. In comparison to non-Hispanic whites, Hispanics are more likely to suffer from tuberculosis, high blood pressure and obesity. Id.

29 Nzerue, Chike M. et al., Race and Kidney Disease: Role of Social and Environmental Factors, 94 J. NAT’L MED. ASSOC. 28S (Supp. 2002)Google Scholar.

30 See, e.g., IOM, IMPROVING HEALTH IN THE COMMUNITY: A ROLE FOR PERFORMANCE MONITORING 40-58 (Jane S. Burch et al. eds., 1997) (summarizing research) [hereinafter IMPROVING HEALTH IN THE COMMUNITY]. Researchers tend to look beyond biomedical determinants of health and to include a wide range of environmental and social factors. See, e.g., SOCIAL DETERMINANTS OF HEALTH (M.G. Marmot & Richard G. Wilkinson eds., 1999) (focusing on social and economic determinants of health); SOCIAL EPIDEMIOLOGY (Lisa F. Berkman & Ichiro Kawachi eds., 2000) (summarizing field); WHY ARE SOME PEOPLE HEALTHY AND OTHERS NOT?: THE DETERMINANTS OF HEALTH OF POPULATIONS (Robert G. Evans et al. eds., 1994); HANDBOOK OF MEDICAL SOCIOLOGY (Chloe Bird et al. eds., 2000).

31 “Of the 30-year increase in life expectancy achieved … [in the 1900s], only 5 years can be attributed to health care services.” IMPROVING HEALTH IN THE COMMUNITY, supra note 30, at 43; see also Gregg Bloche, M., Race and Discretion in American Medicine, 1 YALE J. HEALTH POL’Y L. & ETHICS 95, 97 (2001)Google Scholar. But see Gornick et al., supra note 8, at 154:

The findings from this study raise questions about the views held by some that health care plays only a minor role in explaining disparities in health outcomes. The Medicare experience indicates an association between measures of mortality, morbidity, and disability, and patterns of the use of preventive and health promotion services.

32 INST. FOR THE FUTURE, HEALTH AND HEALTH CARE 2010: THE FORECAST, THE CHALLENGE 23 (2000).

33 1 HEALTHY PEOPLE 2010, supra note 1, at 18.

34 INST. FOR THE FUTURE, supra note 32, at 23 (Figure 2-9). The last ten percent is affected by access to care. See id.

35 1 HEALTHY PEOPLE 2010, supra note 1, at 18 fig. 7. For other models of the determinants of health, see IMPROVING HEALTH IN THE COMMUNITY, supra note 30, at 47-53; Margaret Whitehead et al., Developing the Policy Response to Inequities in Health: A Global Perspective, in CHALLENGING INEQUITIES IN HEALTH: FROM ETHICS TO ACTION 314 (Figure 1) (Timothy Evans et al. eds., 2001).

36 The effort began in 1979 with the publication of a report by the Surgeon General. See OFFICE OF THE SURGEON GENERAL, HEALTHY PEOPLE: THE SURGEON GENERAL's REPORT ON HEALTH PROMOTION AND DISEASE PREVENTION (1979), accessible at http://sgreports.nlm.nih.gov/NN/ListByDate.html. The next round of planning culminated in the 1990 publication of HEALTHY PEOPLE 2000. For reviews of the progress (or lack of progress) toward the Healthy People 2000 objectives, see CTRS. FOR DISEASE CONTROL & PREVENTION (CDC), at http:www.cdc.gov. According to the CDC:

At the end of the decade, the most recent data indicate that 68 objectives (21 percent) met the year 2000 targets and an additional 129 (41 percent) showed movement toward the targets. Data for 35 objectives (11 percent) showed mixed results and 7 (2 percent) showed no change from the baseline. Only 47 objectives (15 percent) showed movement away from the targets. The status of 32 objectives (10 percent) could not be assessed.

CDC, HIGHLIGHTS OF THE HEALTHY PEOPLE 2000 FINAL REVIEW (2001) [hereinafter HIGHLIGHTS], available at http://www.cdc.gov/nchs/data/hp2000/hp2k01.pdf.

37 HEALTHY PEOPLE 2010 reduced the number of national goals from three to two (by trimming the goal of “achiev[ing] access to preventive services for all Americans”) and moved from the goal of “reducing” healthcare disparities (in the 2000 goals) to “eliminating” disparities (in the 2010 version). See generally HIGHLIGHTS, supra note 36. The number of focus areas increased from twenty-two to twenty-eight. Some focus areas were dropped (e.g., clinical preventive services), others were separated out from previous objectives (e.g., chronic kidney disease is now its own focus area), others were merged (e.g., injury and violence prevention) and some were added (e.g., access to quality health services). Id. The end result is that the federal government has pledged to focus attention on a wider range of even more complex health issues.

38 1 HEALTHY PEOPLE 2010, supra note 1, at 8, 11, 17. The project seeks to eliminate disparities resulting from a broad range of factors. See id. at 11 (stating that “[t]he second goal of Healthy People 2010 is to eliminate health disparities among segments of the population, including differences that occur by gender, race or ethnicity, education or income, disability, geographic location, or sexual orientation”).

39 The document notes “[a] major challenge throughout the history of Healthy People has been to balance a comprehensive set of health objectives with a smaller set of health priorities.” Id. at 25.

40 Access to healthcare is the first focus area listed out of a total of twenty-eight areas. Id. at 17.

41 Many of the focus areas relate to more than one determinant of health. See id. at 17-18. Determinants of health include biology, behaviors, social and physical environment, and policies and interventions. Id. at 17.

42 Id. at 24. The report notes: “[t]he Leading Health Indicators illuminate individual behaviors, physical and social environmental factors, and important health system issues that greatly affect the health of individuals and communities. Underlying each of these indicators is the significant influence of income and education.” Id.

43 Id. at 24. For a detailed discussion of the leading health indicators, see id. at 24-45.

44 A rough word search of the first section of Healthy People 2010 yielded only eight examples of objectives suggesting a specific role for law or regulation. See id.

45 See, e.g., id. at 1-4, 1-5, 1-15.

46 See, e.g., id. at 8-9.

47 See, e.g., id. at 7-4.

48 See, e.g., id. at 27-28.

49 Id. at 10.

50 Id. at 16. “[T]he greatest opportunities for reducing health disparities are in empowering individuals … .” Id.; see also Satcher, David, Our Commitment to Eliminate Racial and Ethnic Health Disparities, 1 YALE J. HEALTH POL’Y L. & ETHICS 1, 2 (2001)Google Scholar (Dr. Satcher, a former Surgeon General of the United States, was a key figure in the HEALTH PEOPLE 2010 Initiative's emphasis on eliminating health disparities).

51 Although the point probably is too obvious to require a supporting footnote, a quick LexisNexis search of the “lawrev/allrev” database for access to healthcare articles published after 2000 yielded 22 titles (using search date (aft 2000) and title (access and health and care)). During the same time period, there were four articles published with titles focusing on health disparities (using search date (aft 2000) and title (health and dispar!). The Lexis/Nexis search was conducted on Jan. 20, 2003.

52 See, e.g., Hashimoto, Dean M., The Proposed Patients’ Bill of Rights: The Case of the Missing Equal Protection Clause, 1 YALE J. HEALTH POL’Y L. & ETHICS 77, 88 (2001)Google Scholar.

53 Bloche, supra note 31, at 99-106.

54 Bloche, supra note 31, at 108-12. Professor Bloche argues that tort law fails to protect patients from racially disparate treatment decisions because there often is more than one accepted standard of care and because it is difficult for plaintiffs to prove that alterations in care caused harm in individual cases. Id. at 108-112. Medicaid reimburses providers at such low rates that “it would be surprising if practice within Medicaid-oriented systems were not less technologically-intensive than mainstream care.” Id. at 110. EMTALA guarantees only the level of screening ordinarily available in an emergency room, not the level of care that might be medically appropriate. Id. at 110-11. Finally, HHS enforces civil rights claims against institutional providers accepting Medicare—but not individual physicians—and has not been vigorous. Id. at 111-12.

55 Id. at 117-20. Bloche argues, for example, that cost containment policies should be explicit and public to ensure that they are subject to scrutiny and are not applied selectively. Id. at 117-18. He suggests changes in physician financial incentives (to the extent permitted under the federal ERISA statute). Id. at 118.

56 Noah, Barbara A., Racial Disparities in the Delivery of Health Care, 35 SAN DIEGO L. REV. 135 (1998)Google Scholar; see also Bowser, Rene, Racial Profiling in Health Care: An Institutional Analysis of Medical Treatment Disparities, 7 MICH. J. RACE & L. 79 (2001)Google Scholar (analyzing and suggesting informational requirements to bolster Title VI analysis).

57 Noah, supra note 56, at 156-58.

58 Id. at 170-77.

59 Hashimoto, supra note 52, at 89.

60 Id. at 88-90.

61 See, e.g., President's Health Care Agenda, available at http://www.whitehouse.gov/infocus/healthcare (last visited Mar. 10, 2003).

62 See, e.g., Cooper, Lisa A. et al., Designing and Evaluating Interventions to Eliminate Racial and Ethnic Disparities in Health Care, 17 J. GEN. INTERNAL MED. 477 (2002)Google Scholar (noting and modifying the IOM's “access” approach to reducing healthcare disparities).

63 See INST. FOR THE FUTURE, supra note 32.

64 See supra text accompanying note 34.

65 2 HEALTHY PEOPLE 2010, supra note 1, at 27-3.

66 See infra Part III.C.

67 1 HEALTHY PEOPLE 2010, supra note 1, at 9 (considering only countries with more than one million in population). Men in Cuba and Costa Rica have a greater life expectancy than men in the United States. Id.

68 Id. at 12.

69 Id.; see also Schulz, Amy J. et al., Racial and Spatial Relations as Fundamental Determinants of Health in Detroit, 80 MILBANK Q. 677 (2002)Google Scholar.

70 Defined in HEALTHY PEOPLE 2010 as Asian or Pacific Islanders, African-Americans and Hispanics. 1 HEALTHY PEOPLE 2010, supra note 1, at 14, fig. 5.

71 Id.

72 Id. at 15, fig. 6. A greater percentage of Asian or Pacific Islanders than whites have completed more than twelve years of education. Id.

73 See, e.g., THE SOCIETY AND POPULATION HEALTH READER: INCOME INEQUALITY AND HEALTH (Ichiro Kawachi et al. eds., 1999). Countries with more equal distribution of income (such as Japan and Iceland) appear to enjoy better health status as measured by life expectancy. Id. at 28-35.

74 See, e.g., id.; see also Kubzansky, Laura D. et al., United States: Social Inequality and the Burden of Poor Health, in CHALLENGING INEQUITIES IN HEALTH: FROM ETHICS TO ACTION 105, 118-19 (Evans, Timothy et al. eds., 2001)Google Scholar (discussing the difficulty of identifying a pathway and noting competing hypotheses).

75 ICHIRO KAWACHI & BRUCE P. KENNEDY, THE HEALTH OF NATIONS: WHY INEQUALITY IS HARMFUL TO YOUR HEALTH (2002); see also Daniels, Norman et al., Justice is Good for Our Health, in IS INEQUALITY BAD FOR OUR HEALTH? 3 (2000)Google Scholar.

76 See, e.g., Gravelle, Hugh et al., Income Inequality and Health: What Can We Learn from Aggregate Data?, 54 SOC. SCI. MED. 577 (2002)Google Scholar (authors use “new data set to replicate and extend the methodology in a frequently cited paper”; they find no significant statistical relationship between income inequality and health); Mellor, Jennifer M. & Milyo, Jeffrey, Reexamining Evidence of an Ecological Association Between Income Inequality and Health, 26 J. HEALTH POL. POL’Y & L. 487 (2002)Google Scholar (contradicting many claims from previous studies regarding the association between income disparities and health); Gravelle, Hugh, How Much of the Relation Between Population Mortality and Unequal Distribution of Income Is a Statistical Artifact?, 316 BRITISH MEDICAL J. 382 (1998)Google Scholar; Muntaner, Carlos & Lynch, J., Income Inequality, Social Cohesion, and Class Relations: A Critique of Wilkinson's Neo-Durkeimian Research Program, 29 INT’L J. HEALTH SERV. 59 (1999)Google Scholar (a critique from another direction, arguing that Wilkinson ignores the importance of social class).

77 1 HEALTHY PEOPLE 2010, supra note 1, at 13 (noting the growth of income inequality in the United States).

78 PUBLIC HEALTH LAW AND ETHICS: A READER 16 (Lawrence O. Gostin ed., 2000) (emphasis added); see also Gostin, Lawrence O. et al., The Law and the Public's Health: A Study of Infectious Disease Law in the United States, 99 COLUM. L. REV. 59 (1999)Google Scholar (describing various models of public health, including the behavioral model, and exploring ramifications in public health practice and law).

79 See supra text accompanying note 42.

80 Fielding, Jonathan E. et al., How Do We Translate Science into Public Health Policy and Law?, 30 J.L. MED. & ETHICS 22, 25 (Supp. 2002)Google Scholar.

81 Advocates note that the government spends nearly $1 trillion annually on healthcare related to chronic health conditions. Id.

82 See supra text accompanying note 2.

83 A criminal ban on cigarette smoking might decrease the smoking rate, but at the cost of both the freedom of those imprisoned and the freedom of choice of those who refrain from smoking under the threat of criminal sanctions. A ban on smoking in public would allow people to continue to choose to engage in the unhealthy behavior, subject to time, place and manner restrictions.

84 Should smoking be banned or regulated? What about the use of alcohol? What about other drugs? Should “super-sized” food portions be banned or otherwise regulated?

85 For a specific example of this debate, see infra Part II.C.3.

86 Regulations might give rise to discrimination claims where, for example, one racial or ethnic group disproportionately enjoys the proscribed conduct. One example of this dispute is the regulation and closure of bathhouses during the early years of the HIV/AIDS epidemic. See generally RANDY SHILTS, AND THE BAND PLAYED ON (2000).

87 For an extended discussion of some of these points, see Gostin et al., supra note 78, at 71- 74.

88 See supra text accompanying note 67.

89 Wong, Mitchell D. et al., Contribution of Major Diseases to Disparities in Mortality, 347 NEW ENG. J. MED. 1585 (2002)Google Scholar (assessing socioeconomic class by years of education rather than income).

90 2 HEALTHY PEOPLE 2010, supra note 1, at 27-10 to 27-34; see also Henson, Rosemarie et al., Clear Indoor Air: Where, Why, and How, 30 J.L. MED. & ETHICS 75, 76 (Supp. 2002)Google Scholar.

91 2 HEALTHY PEOPLE 2010, supra note 1, at 27-34; see also Henson et al., supra note 90, at 76.

92 See generally TASK FORCE ON CMTY. PREVENTATIVE SERVS., CDC (containing information about the Task Force, its mission, membership, and recommendations), at http://www.thecommunityguide.org (last modified Feb. 26, 2003).

93 See TASK FORCE ON CMTY. PREVENTATIVE SERVS., CDC, TOBACCO, available at http://www.thecommunityguide.org/tobacco (last updated Mar. 3, 2003).

94 2 HEALTHY PEOPLE 2010, supra note 1, at 27-34; see also Leverett, Michelle et al., Tobacco Use: The Impact of Prices, 30 J.L. MED. & ETHICS 88, 89 (Supp. 2002)Google Scholar.

95 See, e.g., 2 HEALTHY PEOPLE 2010, supra note 1, at 27-8 (noting that legislatures have made, at best, mixed progress in meeting the objectives for 2000).

96 Henson et al., supra note 90, at 76; see also 2 HEALTHY PEOPLE 2010, supra note 1, at 27- 28.

97 See, e.g., HHS, REDUCING TOBACCO USE: A REPORT OF THE SURGEON GENERAL 338 (2000).

98 1 HEALTHY PEOPLE 2010, supra note 1, at 13-3, 13-6, 13-8 to 13-10.

99 Id. at 13-3 to 13-4.

100 Id. at 13-5, 13-14 to 13-15 (noting, but failing to explicitly recommend, needle exchange programs).

101 See, e.g., Burris, Scott & Ng, Mitzi, Deregulation of Hypodermic Needles and Syringes as a Public Health Measure: A Report on Emerging Policy and Law in the United States, 12 GEO. MASON U. CIV. RTS. L.J. 69 (2001)Google Scholar.

102 See, e.g., Geyser, Daniel, Needle Exchange Program Funding, 37 HARVARD J. ON LEG. 265 (2000)Google Scholar (describing the history of federal efforts to ban the use of federal funds for needle exchange).

103 See Gostin, Lawrence O. & Lazzarini, Zita, Prevention of HIV/AIDS Among Injection Drug Users: The Theory and Science of Public Health and Criminal Justice Approaches to Disease Prevention, 46 EMORY L.J. 587 (1997)Google Scholar; Gostin, Lawrence O., The Epidemics of Injecting Drug Use and Blood-Borne Disease: A Public Health Perspective, 31 VAL. U. L. REV. 669 (1997)Google Scholar.

104 2 HEALTHY PEOPLE 2010, supra note 1, at 19-1 to 19-54.

105 See 1 id. at 5-1 to 5-40 (discussing diabetes); 2 id. at 22-1 to 22-39 (discussing physical activity and fitness).

106 2 id. at 19-4. For data on rates of health weight, overweight and obesity among adults and children, see NAT’L CTR. FOR HEALTH STATS., supra note 20, at Tables 70 (adults) and 71 (children and adolescents).

107 The illnesses include “high blood pressure, type 2 diabetes, coronary heart disease, [and] stroke … .” 2 HEALTHY PEOPLE 2010, supra note 1, at 19-5 (noting additional diseases); see also Mokdad, Ali H. et al., Prevalence of Obesity, Diabetes, and Obesity-Related Health Risk Factors, 2001, 289 JAMA 76 (2003)Google Scholar (obesity and diabetes are increasing across the U.S. population; obesity and overweight associated with greater risk of other medical conditions); Fontaine, Kevin R. et al., Years of Life Lost Due to Obesity, 289 JAMA 187 (2003)Google Scholar (obesity lessens life expectancy). But see Paul Campos, The Weighting Game, NEW REPUBLIC, January 13, 2003, available at http://www.tnr.com (prominent law professor-critic of obesity research contends that the methodology is flawed and that health status is more strongly associated with activity level than with BMI (body mass index)).

108 2 HEALTHY PEOPLE 2010, supra note 1, at 19-3.

109 “[O]besity is particularly common among Hispanic, African-American, Native American, and Pacific Islander women.” Id. at 19-5.

110 Id. at 19-13.

111 See, e.g., Matt Crenson, Less, Please; An Anti-Obesity Crusader Appeals for Restraint in the Land of Plenty, CHICAGO TRIBUNE, Dec. 4, 2002, at 3A (noting that a “2001 poll by Princeton University researchers found that most people consider obesity a problem of individual willpower, not a product of the increased availability of unhealthful food”). Yet, as other public health officials and legislators have noted, “[e]ffective prevention and treatment [of childhood obesity] will require both individual and community-wide efforts.” Dietz, William H. et al., Policy Tools for the Childhood Obesity Epidemic, 30 J.L. MED. & ETHICS 83, 85 (Supp. 2002)Google Scholar.

112 2 HEALTHY PEOPLE 2010, supra note 1, at 19-5 to 19-6.

113 Id. at 19-7.

114 One explanation for the differential treatment of tobacco and unhealthy or excessive food is that tobacco is physically addictive. However, Healthy People 2010 notes that patterns of obesity formed in childhood can have serious consequences into adulthood. 2 HEALTHY PEOPLE 2010, supra note 1, at 19-3, 19-16.

115 Healthy People 2010 does not address the legal aspects of parental responsibility, either for tobacco use or obesity. See id. at 19-1 to 19-54; cf. Arani, Shireen, Comment, State Intervention in Cases of Obesity-Related Medical Neglect, 82 B.U. L. REV. 875 (2002)Google Scholar. Nor does the report address the potential liability of purveyors of fast food and super-sized meals. See 2 HEALTHY PEOPLE 2010, supra note 1, at 19-1 to 19-54; cf. Crawford, Franklin E., Note, Fit for Its Ordinary Purpose? Tobacco, Fast Food, and the Implied Warranty of Merchantability, 63 OHIO ST. L.J. 1165 (2002)Google Scholar.

116 See supra text accompanying note 2.

117 The Healthy People 2010's objectives with respect to physical fitness include “increas[ing] the proportion of the Nation's public and private schools that require daily physical education for all students.” 2 HEALTHY PEOPLE 2010, supra note 1, at 22-19. The Task Force on Community Preventive Services issued a report on increasing physical activity in the Fall of 2001; the report also recommends expanding physical education programs in schools. TASK FORCE ON CMTY. PREVENTIVE SERVS., CDC, INCREASING PHYSICAL ACTIVITY: A REPORT ON THE RECOMMENDATIONS OF THE TASK FORCE ON COMMUNITY PREVENTION STRATEGIES, 50 MORBIDITY & MORTALITY WEEKLY REP. 1, 9 (2001) (RR-18).

118 Advocates hoping to use the legal system to address the causes of obesity appear to be most interested in the use of tort law. See, e.g., Nat Ives, Food Companies Are Urged to Act to Deflect Blame for the Nation's Increase in Obesity, N.Y. TIMES, Dec. 4, 2002, at C4 (discussing potential parallels between tobacco and fast food in future regulation and litigation). For pro-food industry rejoinders to these points, see CTR. FOR CONSUMER FREEDOM.COM, at http://www.consumerfreedom.com (last visited Mar. 3, 2003).

Government intervention through more aggressive spending programs or more restrictive regulation seems far away. But see Crenson, supra note 111 (noting op-ed column which appeared in New York Times in 1994 suggesting a “junk-food tax”); Kersh, Rogan & Marone, James, The Politics of Obesity: Seven Steps to Government Action, 21 HEALTH AFFAIRS 142 (2002)Google Scholar; Note, The Elephant in the Room: Evolution, Behavioralism, and Counteradvertising in the Coming War Against Obesity, 116 HARV. L. REV. 1161 (2003). Kersh and Marone sketch the possible future course of federal regulation:

If the federal government were to mobilize against obesity, what might it do? Governmental policies toward alcohol, tobacco, and drugs include at least four regulatory strategies: controlling the conditions of sale through direct restrictions or limits (especially aimed at youth); raising prices through “sin taxes”; government litigation against producers of unhealthy substances with damage awards earmarked for health care or healthy alternatives; and regulating marketing and advertising. As we noted above, federal officials already promote alternatives to unhealthy eating, via education programs warning consumers about health risks; stronger education measures might include government-funded cessation programs addressing compulsive behavior, or direct subsidies for healthy alternatives. A combination of these policies—now in place at state and federal levels for tobacco, alcohol, and drugs—could be applied to unhealthful, low-nutrition foods.

Kersh & Marone, supra note 118, at 151.

119 See supra Part II.B; see also David R. Williams, Racial/Ethnic Variations in Women's Health: The Social Imbeddedness of Health, 92 AM. J. PUB. HEALTH 588 (identifying socioeconomic status as a central determinant of racial/ethnic disparities).

120 See supra text accompanying note 71.

121 See id.

122 See supra Part II.C.2.

123 See supra Part II.B.

124 Researchers have not, however, identified the biological pathway through which an individual's social status affects his or her health.

125 See supra text accompanying notes 36-43.

126 See id.

127 See supra note 8.

128 See, e.g., Whitehead, Margaret et al., Developing the Policy Response to Inequities in Health: A Global Perspective, in CHALLENGING INEQUITIES IN HEALTH: FROM ETHICS TO ACTION 309-10 (Evans, Timothy et al. eds., 2001)Google Scholar. Shared values can in turn lead to the development of “targets,” such as “income disparities should not increase beyond the present level … .” Id. at 311.

129 Bloche, supra note 31, at 97-98 (2001).