Law as a Social Determinant of Health and the Pursuit of Health Justice
- August 21, 2020
- Daphne McGee , Texas Legal Services Center
- Drew Stevens , Arnall Golden Gregory LLP
The two tragedies of the disproportionate toll of COVID-19 on minority communities and the killing of George Floyd have sparked renewed focus on the social determinants of health and the importance of health justice in the conversation of overall justice. According to the Centers for Disease Control and Prevention, social determinants of health are conditions in the places where people live, learn, work, and play that affect a wide range of health risks and outcomes.
These conditions are important because “[T]he overwhelming evidence demonstrates that disadvantaged groups have poorer survival chances and a higher mortality rate, die at a younger age, experience a blighted quality of life, and have overall diminished health and well-being when compared to other members of society.” Recently, these renewed efforts have included identifying racism as a public health crisis, promoting the end of mass incarceration, and preserving safe, healthy environments for families in poverty during the COVID-19 pandemic.
For the health law community in particular, it is especially vital that we recognize the law itself as a social determinant of health. This would include the law as policy, the law as a process, the law as a social experience, and the law as determinative of certain outcomes. And while this is not a novel concept, it is not widely endorsed or sufficiently operationalized. Nevertheless, from the lack of affordable legal representation (civil and criminal), to the historic inability to fully integrate legal professionals into health equity teams, the failure to appreciate the law as a social determinant of health is a hindrance to the pursuit of health justice and health equity.
So how should the health law community respond now?
Create and Empower Medical-Legal Partnerships
Perhaps the natural first step is to create vibrant Medical-Legal Partnerships (MLPs) wherever they do not already exist and to further empower those already in operation. An MLP “is a health care delivery model that integrates legal assistance into health care institutions serving the most vulnerable patient populations to address the social determinants of health.” The premise of an MLP “is that unmet legal needs are social determinants of health”
The foundation of MLPs is thus collaboration across sectors that acknowledges the reality that health is multi-dimensional and dependent on more than just medical interventions. In MLPs, legal service attorneys are embedded as members of a health care institution’s team to address health-harming legal needs of the institution’s patients. The health-harming legal needs addressed often revolve around social determinants of health. MLPs have been shown to contribute to positive health outcomes by addressing income instability, inadequate housing, and health care access issues, among other things.
The core components of an MLP are (1) legal assistance; (2) transforming health and legal institutions and practices; and (3) policy change. Thus, an MLP: (1) trains frontline clinicians to identify unmet legal needs concerning income support, housing and utilities, education, legal status issues, family stability and safety, and refers patients to MLP attorneys; (2) enhances health systems’ ability to advocate for vulnerable populations while delivering legal services in a trusted health care setting; and (3) promotes an understanding of how laws and policy impact the health of both individuals and communities as a whole.
According to the National Center for Medical-Legal Partnership, 442 health organizations in 48 states have developed MLPs. Yet this work is all the more urgent given the added pressure on MLPs due to the COVID-19 pandemic.
For health law attorneys in private practice, there are several ways to support MLP initiatives. First, private health law attorneys can volunteer with existing MLPs to provide direct, pro bono representation for MLP patient-clients. MLPs can also use support in policy research projects, as an important component of MLP work is advocating for broad, population-level changes that address inequity. Another important way private attorneys can support MLPs is to provide critical funding for scaling up and sustaining MLPs. Lastly, partnering directly with legal services firms or organizations such as Equal Justice Works to fund MLP efforts is a powerful way to bolster the growing MLP movement.
Prioritize Health Care Civil Rights
An entire body of federal law promotes health justice and health equity by protecting individuals and their companions from discrimination in the provision of health care. This body of law, given new life through Section 1557 of the Affordable Care Act, prohibits discrimination (intentional and unintentional) in health care on the basis of race, color, national origin, age, sex, and disability. This body of law requires, among many other things, that language assistance services be provided free of charge to individuals with Limited English Proficiency; it protects all individuals in the U.S. regardless of immigration status; and it imposes a number of requirements on health care organizations to provide equal access for individuals with disabilities, including individuals with visual, hearing, and mobility disabilities. This law can be enforced by private individuals, by state actors, and by federal institutions such as the Department of Justice and the Department of Health and Human Services (HHS) Office for Civil Rights.
Prioritizing health care civil rights within health care organizations thus provides two complimentary benefits: it reduces legal risk to the organization while at the same time advancing health equity and health justice. Prioritizing health care civil rights is therefore another natural first step towards recognizing the law as a social determinant of health.
Yet it also bears emphasis that the history of health care civil rights—through Title VI of the Civil Rights Act of 1964 in particular—is an example of the tremendous power of the law as a social determinant of health. Title VI and the threat of its enforcement effectively desegregated the health care industry in a matter of months, ending one dark chapter of inequity in health and enabling us all to begin another chapter. So, while history teaches that where there is discrimination there can be no equity, it also shows us that the law has the power to transform.
It would nevertheless be wrong to confine Title VI’s importance to the past. As evidenced by recent guidance from HHS OCR, the application of Title VI to the health care industry could have a direct impact on the health law community’s response to the COVID-19 pandemic. By prioritizing health care civil rights, the health law community can carry forward Title VI’s legacy even in these trying times.
Advocate for Safe and Affordable Housing through Direct Representation
The critical link between housing and health is plain. In response, health systems have created programs focused on housing and invested financially in affordable housing. But there is also an “access to justice” crisis in this nation that directly affects the intersection of housing and health. In short, the dire lack of legal representation for individuals in housing matters is pervasive. Yet scholars have identified a vicious cycle involving health problems, eviction, and homelessness: “Eviction begets poor housing conditions, which cause poor health, affecting an individual’s ability to work, resulting in outstanding rent due to her already-low-income status, and ultimately leading the tenant and her family to face another eviction and a new downward spiral.” This vicious cycle is a crisis of health justice.
So while institutions can and should make institutional commitments, individual attorneys can provide direct representation to individuals and their families in connection with their housing needs. Individual attorneys and their organizations should also consider supporting a “right to counsel” in civil legal matters, including housing matters. For example, the American Bar Association has adopted a resolution urging “federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to [low-income] persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter.” As an eviction crisis looms amid the pandemic, this work is more urgent than ever before.
Push for “Health in All Policies”
The field of health law is itself often dominated by health policy. But the health law community should also prioritize a “Health in All Policies” approach. The doctrine of “Health in All Policies” is defined as an approach to public policies and governance across all sectors to “systematically address the health and health-system implications of decisions, seek synergies, and avoid harmful health impacts.” This approach to public policy thus examines non-health sectors that influence health such as “agriculture, consumer protection, education, energy, education, environment, housing, insurance, labor, taxation, transportation, and zoning.” Thus, the “Health in All Policies” approach “requires institutions and entities that are both integral to the health care system and outside of the health care system to be accountable for the impact of policies and actions on health.”
Given the health law community’s expertise and commitment to health policy, it is imperative that the health law community embrace a “Health in All Policies” approach to public policy generally.
Pursue Health Justice for Health Equity
In the words of two of the most prominent health law advocates: “The most powerful lever at our disposal to fix and redesign [the social] determinants of health is the law.” The health law community therefore has a vital role to play in addressing the social determinants of health, which should begin with the recognition that the law is itself a critical social determinant of health. This will then enable the health law community to lead in the pursuit of health justice—defined by Emily Benfer as a “new jurisprudential and legislative framework for the achievement and delivery of health equity and social justice”—which is itself critical to the pursuit of health equity.
Daphne McGee is a staff attorney in the Medical-Legal Partnerships program at Texas Legal Services Center. She works with the MLP medical partners to provide civil legal services to the institution’s patients and their families.
Drew Stevens is a litigator at Arnall Golden Gregory LLP in Atlanta, GA. He represents hospitals and health systems in connection with federal civil rights laws and provides pro bono housing representation to families through the Atlanta Volunteer Lawyers Foundation. He is thankful to the number of health justice advocates and scholars who have brilliantly and tirelessly set the stage for this work.
 Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 279 (2015).
 See Scott Burris et al., Integrating Law and Social Epidemiology, 30 J.L. Med. & Ethics 510, 510 (2002) (establishing a dual framework for analyzing the relationship between law and social determinants of health, as law both creates social conditions and acts as a pathway along which such conditions operate).
 Hazel Genn, (2019) ‘When Law is Good for Your Health: Mitigating the social determinants of health through access to justice’, Current Legal Problems, https://academic.oup.com/clp/advance-article/doi/10.1093/clp/cuz003/5522522?guestAccessKey=d8713ace-acad-4b01-8d1e-662209632ba4 (2019).
 Charity Scott, ID., MSCM, Incorporating Lawyers on the Interprofessional Team to Promote Health and Health Equity, 14 Ind. Health L. Rev. 54, 55 (2017).
 Elizabeth Tobin Tyler, Aligning Public Health, Health Care, Law and Policy: Medical-Legal Partnership As A Multilevel Response to the Social Determinants of Health, 8 J. Health & Biomedical L. 211, 233–34 (2012).
 See id.
 See id. at 234-238.
 See id.
 See Sidney D. Watson, Section 1557 of the Affordable Care Act: Civil Rights, Health Reform, Race, and Equity, 55 How. L.J. 855, 859 (2012).
 See also Mary Crossley, Black Health Matters: Disparities, Community Health, and Interest Convergence, 22 Mich. J. Race & L. 53, 57 (2016) (arguing that the ACA’s creation of the Community Health Needs Assessment could play a role in reducing health disparities by aligning hospitals’ financial interests with those seeking to reduce health disparities).
 David Smith, The Power to Heal: Civil Rights, Medicare, and the Struggle to Transform America’s Health Care System (Vanderbilt Press, 2016).
 Legal Services Corporation, Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans 16 (2009), http://www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_ justice_gap_in_america_2009.pdf (noting that less than one in five legal problems experienced by low-income people are addressed with the assistance of a private attorney or legal aid lawyer).
 Allyson E. Gold, No Home for Justice: How Eviction Perpetuates Health Inequity Among Low-Income and Minority Tenants, 24 Geo. J. on Poverty L. & Pol’y 59, 64-65 (2016).
 See id. at 83.
 Am. Bar. Ass’n Task Force on Access to Civil Justice, et al., House of Delegates Resolution 112A 1 (Aug. 7, 2006), http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_06A112A.authcheckdam.pdf (emphasis added).
 Raj C. Shah, Sarah R. Kamensky, Health in All Policies for Government: Promise, Progress, and Pitfalls to Achieving Health Equity, 69 DePaul L. Rev. 757, 758 (2020).
 Wendy K. Mariner, Beyond Lifestyle: Governing the Social Determinants of Health, 42 Am. J.L. & Med. 284, 297–98 (2016); see also Lindsay F. Wiley, The U.S. Department of Agriculture As A Public Health Agency? A "Health in All Policies" Case Study, 9 J. Food L. & Pol'y 61, 63 (2013).
 Raja Staggers-Hakim, PhD, MPH, Black Lives Matter, Civil Rights, and Health Inequities, 40 W. New Eng. L. Rev. 447, 458 (2018).
 Joel Teitelbaum, Ellen Lawton, The Roots and Branches of the Medical-Legal Partnership Approach to Health: From Collegiality to Civil Rights to Health Equity, 17 "Yale J. Health Pol'y, L. & Ethics" 343, 377 (2017).