III. The Role of Reparations for Black Health Disparities
Four years ago, I questioned whether superficial remedies would be up to the task for so grave a condition:
Any attempt to remedy health disparities cannot be limited to mere legal fictions of equality; Title VI has been ineffective in reducing disparities in Black health. Token efforts will always be confronted with the troublesome facts of 73,000 excess Black deaths per year and the continuing gap in Black life expectancies. One example of a token effort which does not affect the underlying social structures is Virginia's recently-announced plan to offer reparations for racial exclusion in education in the years following Brown v. Board of Education by offering college scholarships to the individuals (now in their 50s and 60s) who were denied access to education more than four decades ago. While apologies and scholarships are certainly appropriate, the scholarships are not nearly as useful near the end of life as they would have been at age 20. Perhaps the scholarships should be offered to the grandchildren. Better yet, everyone should receive an excellent education. Rough justice is preferable to injustice.
The Black health experience during the intervening years has not changed my opinion of the gravity of the situation. The most recent statistics do not portend a speedy end to Black health disparities. One is hard-pressed to find substantial gains since 2004. The long-term data are quite striking, with racial disparities surviving even major reforms such as Social Security, Medicare, Medicaid, the Civil Rights Act, the *939 Voting Rights Act, and SCHIP. Our experience over the last century suggests that even substantial reforms are not guaranteed success.
Figure 1: Life Expectancy at Birth
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
Figure 1 tells a story of vast improvements in health over the past century, but also shows persistent disparity between Black and white, male and female. The gaps on this chart represent millions of excess deaths in the twentieth century alone. Of particular note are the relatively stronger gains by Black women, whose life expectancies now exceed white men. Whatever factors have been at work, Black men most acutely felt the negative impact.
Some researchers note that the absolute gap between Black and white life expectancy has narrowed in recent decades, but the focus on absolute gains can be misleading. As a species, we may be reaching the top of the life expectancy curve. In the twentieth century we enjoyed unprecedented gains in U.S. life expectancy, but most experts do not expect the same in the twenty-first century. Medical technology and *940 public health efforts will be hard-pressed to raise white life expectancies in the United States by another fifty percent in the next century. Matching the record of the prior century on even an absolute gain basis would still require about three decades of improvement, pushing the average human lifespan towards 120 years by the end of the twenty-first century. Figure 1 demonstrates that the rate of increase has slowed, creating statistical compression. The leading contributors to current racial disparities in health are heart disease, cancers, and infections; the disparities are becoming particularly concentrated in the older populations.
If one focuses on the absolute Black-white gap in life expectancy, statistical compression could be interpreted as an optimistic note. From a different perspective, the situation is less sanguine. Consider another measure of progress: how long has it taken Black life expectancies to reach the same levels white men and women reached in previous years? For most of the past century, it has taken about a generation (27-40 years) for Black LEAB to reach white levels. It is hard to discern a positive trend over time in Figure 2 below.
Figure 2: Black Disparity in Life Expectancy at Birth (LEAB)
*941 This stagnation in Black health gains occurred despite significant Congressional attention and substantial funding to address racial disparities in health under the Bush Administration. We now have an annual series of National Healthcare Disparities Reports, stretching back to 2003, with mountains of supporting data. These efforts were not mere tokens, as in the Virginia offer of scholarships to the elderly, and yet they have been ineffective, at least over the short term.
Historical tragedies may call for historic remedies. Reparations offer an alternative to the status quo and incremental reforms. They hold the promise of a clean break with a shameful past and a costly catharsis before healing begins. But, reparations bring their own baggage and limitations, which have been widely discussed in the legal literature. The primary legal challenges are standing (who has the right to bring a suit on behalf of former slaves), statutes of limitation (everyone *942 involved in slavery is long dead), causation (linking present conditions with historical injustices), and sovereign immunity (many of the crimes were committed by the government, or with government sanction). In response, many legal theories have been proposed to address one or more of these barriers. Some writers suggest torts or unjust enrichment as possible foundations for reparation claims. Others appeal to human rights norms in international law, or U.S. Constitutional law and civil *943 rights statutes. Some have focused on criminal law, or the record of land stolen from Blacks, or even the structures of inheritance law. Another group of scholars have turned to private defendants, including insurance companies, professional associations, and other corporations. Saul Levmore suggests that any politically realistic reparations program must be voluntary. My own work uses the more recent history of health care segregation to bring the events into the 1960s and beyond, addressing some of the concerns about remoteness of injury and the statute of limitations. Standing issues are reduced when defendants can be clearly identified. In the health care context, many of the actors are hospitals, professional societies, and governments with legal continuity to the present day. Likewise, identification of a properly limited plaintiff class seems more plausible when the class is all Black Americans born in segregated hospitals or treated in segregated facilities. This class will include many millions of citizens who were born before the end of legal segregation in health care, but the class is not so vast and indeterminate as “all descendants of slaves” or “all Black Americans.”
Another tact by reparations scholars has been to focus on the remedy rather than on the precise legal justification. Articles discussing *944 affirmative action or education in a reparations context fall into this category, as does some of the health disparities literature.
Eliminating health disparities seems an especially favorable project because the remedies are less likely to be race-specific. One weakness of affirmative action (in education or otherwise) is the clear racial basis for selecting winners and losers. This process has been condemned as condoning racism in the name of reparations. The situation for health reparations is quite different. Any structural remedy to address health disparities will likely involve systemic health reform across the board, without special preferences for patients of any particular color, although some Congressional legislation on racial disparities has included support for increased minority enrollment at medical schools and support for historically Black medical schools.
Randall Robinson called for a significant, multi-generational investment in Black education. If this program were broadened to include all children from disadvantaged backgrounds, it begins to lose its “reparational” distinctiveness, while its political prospects gain traction.
But none of this scholarship should be mistaken for broad political support for reparations. Even with Democratic majorities in the House, Representative John Conyers' bill to study reparations still has not made it out of committee.
