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Kevin Outterson
Kevin Outterson, Tragedy and Remedy: Reparations for Disparities in Black Health, 9 DePaul Journal of Health Care Law 735 (2005) (275 Footnotes Omitted)
The Tragedy of American health care is the stubborn persistence of disparities in Black health, 140 years after Emancipation, and more than four decades after the passage of Title VI. Formal legal equality has not translated into actual health equality. This Tragedy is deeper and older than mere legal forms; it has been supported by powerful social institutions, including some governments, charities, market participants, religions, ideologies, and cultures. Black health disparities interact with other vestiges of slavery such as disparities in wealth, education, employment and housing. They have permeated the American health experience. Efforts to eliminate Black health disparities will require something more transformative than Title VI. The history of oppression in America is laid bare by Black disparities in health.
The recent scientific literature on disparities in Black health tends to minimize the context in which these disparities arise. Medical research in particular is distracted by an etiological reductionism which overlooks the underlying history of slavery, racism and segregated health care. The dominant research model is ill-equipped to diagnose the social health effects of being Black. Standard practice controls for variables such as income and education, even though these variables themselves bear the legacies of American racism. These studies *736 underestimate actual Black health disparities and obscure the relevant social contexts.
One candidate for transforming the Black health experience is reparations for the historic crimes of slavery, segregation and discrimination. When reparational analysis is applied to Black health disparities, history and social context are brought front and center and the weakness of mere legal equality is made clear. Black reparations would require transformative change in society rather than just another programmatic band-aid. Reparational analysis also avoids the errors of etiological reductionism and racialized research by focusing upon the underlying causes of disparities in Black health, and connecting it with centuries of American history and law.
Black reparations are considered a fringe political movement and a weak legal argument. One important objection to Black reparations is remoteness of the injury - the crimes were long ago, all of the defendants and plaintiffs are dead, and the statutes of limitation have run. Lawsuits raising broad claims for Black reparations are invariably dismissed without reaching the merits. In July 2005, the African-American Slave Descendants Litigation was dismissed without reaching the merits. The Tulsa Race Riot reparations litigation met a similar fate the previous September.
The legal prospects for reparations may improve in the narrower context of Black health disparities. Disparities in Black health are rooted in a long history of oppression and state-supported health care discrimination. These practices continued deep into the 20th Century, and are not wholly absent today. Black health disparities are not remote but survive to the present day with remarkably deadly effect. Black children born in 2005 continue to suffer much shorter life expectancies than their white counterparts. Black health disparities provide a firmer foundation for reparations that are less susceptible to charges of remoteness.
This project may also breathe some reality into the critical race theory and reparations literature and respond to Richard Delgado's call for reparations scholarship which moves beyond mere discourse to *737 practical, structural changes in society. Health is not a peripheral social concept but is a key indicator of how society is structured and its resources allocated. If you want to know something about inequality in a society, look at its health outcomes. Eliminating American disparities in Black health is both a practical remedial goal and a revolutionary step in social justice.
