Volume 108

Structural Inequality: The Real COVID-19 Threat to America’s Health and How Strengthening the Affordable Care Act Can Help

by Dayna Bowen Matthew

The premise of this Essay is that to eradicate health disparities, America’s equal protection jurisprudence must once again become a useful tool in the fight to reverse the systemic discrimination that characterizes the major social determinants of health. Inequitable access to housing, education, and community safety are at the root of the health injustices that we politely call “health disparities.” Health inequity is due primarily to our nation’s disregard for the equal humanity of minorities with white populations. This disregard, it turns out, is an adverse indicator for the health of both majority and minority populations. Indeed, the departure from an equality principle that protects the inalienable right of every member of society to enjoy an opportunity to pursue a healthy life does damage to the shared moral fiber of the nation, as well as to its collective health and well-being.

I make this argument in three Parts. In Part I, I outline the conceptual framework of the equality principle that animated the drafters of the Equal Protection Clause when it was ratified. I contend this same principle should drive antidiscrimination law today. Unfortunately, it does not. The first Part highlights the departure from “equal protection of the laws” in theory to the current unequal protection of the laws that prevails in the United States today. In Part II, I show the effect of this departure on equal access to decent and affordable housing, safety, recreation, food security, education, and wealth for minority populations. I connect these inequities to the disparate health outcomes that minority populations suffer. Part III suggests building upon the steps toward implementing a public health agenda to address health inequality taken by drafters of the Patient Protection and Affordable Care Act (the Affordable Care Act or ACA). The ACA allowed some demonstrable progress toward an equitable distribution of healthcare, and thereby began to move the needle toward reducing structural inequality. Moreover, the ACA contains a healthcare civil rights provision, which represents one of the most significant course corrections in the nation’s departure from true equal protection of the laws since the 1965 Civil Rights Act. Section 1557 of the ACA prohibits discrimination by health programs and activities that receive federal financial assistance. I argue that if properly enforced, this section of the Affordable Care Act could disrupt the progressively widening gap between the haves and have-nots that threatens our national health, and that has proved deadly to African-American, LatinX, and low-wealth people disproportionately

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