Abstract

Excerpted From: Yael Zakai Cannon, Equitable Thriving: A Lifecourse Approach to Maternal and Child Health Justice, 113 Georgetown Law Journal 253 (December, 2024) (466 Footnotes) (Full Document)

The United States has a maternal and infant mortality--and inequity-- crisis. Racial health disparities affecting Black women and birthing people, infants, and children, as well as those from other racially minoritized groups, are immense and grave. Black women are at least three times as likely as White women to die from pregnancy-related causes. Women of color have higher rates than White women of preterm births, low-birthweight births, and late or no prenatal care. Racial disparities also exist for multiple forms of severe maternal morbidity, or unexpected serious health conditions from pregnancy, labor and delivery, and postpartum, including admission to intensive care units and substantial blood transfusions.

Moreover, racial disparities abound across measures of infant health. The infant mortality rate for Black babies is more than twice that for White babies and disproportionately higher for Indigenous and Latine babies. Chronic conditions, such as asthma, heart disease, a range of cancers, and diabetes, disproportionately impact Black children and other children of color.

The health justice framework surfaces mechanisms both within and well outside of healthcare to attack subordination as a root cause of this health inequity. The framework posits that just as law has shaped the structural drivers of health inequity, law can and should be used to actively eradicate disparities. Health justice applies critical theories and perspectives to pressing problems within health law and policy and incorporates frameworks from other justice movements, such as the reproductive justice movement, which works to enshrine and protect the rights to have and not have a child and to parent with dignity.

In applying a health justice lens to maternal and child health, this Article centers and builds on the important body of legal scholarship examining the maternal and infant mortality and morbidity crises. Whereas that scholarship has surfaced important racialized dimensions of healthcare connected to pregnancy, labor, and delivery, this Article adds a set of inquiries and interventions to examinations of maternal and child health justice. It draws on Lifecourse Health Development theory and research to propose a new and additional approach in the fight for maternal and child health justice called “equitable thriving.” Equitable thriving widens the analytical lens to examine maternal and child health justice both across the broad range of sectors beyond healthcare that impact health and across a wider timeframe, long before and long after pregnancy and indeed across the lifespan and generations. It calls for equitable and optimal maternal and child flourishing as a core goal of health justice and offers principles and evidence from lifecourse science to guide law reform and implementation approaches to that end.

The following story demonstrates the need for a robust, holistic vision of maternal and child health grounded in health justice. Tina is a Black woman who was discharged from the hospital, exhausted after a difficult delivery of her baby. She was looking forward to bringing her newborn daughter home, but she was also worried. There was mold throughout her apartment that triggered her asthma, and she had experienced numerous severe asthma attacks during her pregnancy. Her landlord advised her to use basic cleaning supplies to clean the mold, which she tried without success, but he refused to take further steps to remediate the mold. Tina was worried about how the mold would continue to affect her and her baby's breathing, as her doctor advised her the mold could lead to lifelong respiratory problems for her daughter.

Tina was also worried about her job. She took a lot of unpaid time off work during her pregnancy for prenatal doctor's appointments and emergency room visits during her asthma flare-ups. Taking additional unpaid leave to recover from her difficult delivery and to care for her daughter, since she did not have childcare, would be extremely stressful and could cause her to lose her job. She was already behind on rent and making difficult choices each month between paying for rent, utilities, or food, leading her to frequently skip meals. Tina was worried that she and her newborn would be evicted and become homeless. She was also concerned about how she would pay for preschool for her daughter as she got older because there were no affordable programs nearby. She felt alone and isolated, like the system was stacked against her and that she was powerless to change her circumstances.

Tina and her daughter are lacking the conditions they need to achieve health and flourish. Systems grounded in law related to housing, employment, and childcare deprive them of those conditions. For example, the difficult choices Tina is forced to make as a result of her unpaid leave and her challenges paying rent have led to food insecurity that could negatively impact her health, as well as her infant's health. Moreover, because food insecurity during pregnancy and in infancy is particularly harmful, it can have lifelong impacts, especially when unmitigated. Consequently, Tina's daughter may grow up to be a less healthy adult. If Tina's daughter eventually becomes a parent, this early childhood food insecurity could have further intergenerational impacts, ultimately affecting the health of Tina's daughter's future children. In other words, if left unaddressed, these circumstances could affect Tina and her daughter not just at that moment, but throughout her daughter's life, including her daughter's possible future maternal health. These circumstances could even affect her daughter's future children, contributing to the entrenchment of health inequity faced by Black families across generations.

What would health justice for Tina, her baby, and subsequent generations look like? How can Tina and her baby experience optimal health and well-being throughout their lives? In addition to access to robust and culturally responsive reproductive, maternal, and infant healthcare that is free from racism and bias, their family needs access to quality childcare, early childhood education, consistent income, stable housing, and opportunities to come together with neighbors for support and solidarity in driving systems change and improving community health. With deprivations of all these conditions that are necessary for them to thrive, Tina and her daughter are experiencing barriers to both health and justice created by legal drivers of health inequity.

This Article argues that health justice requires that law be used instead to create the conditions necessary for equitable maternal and child thriving, with approaches grounded in law and lifecourse science. Lifecourse Health Development (LCHD) theory and research--well-developed in public health and medical literature but largely absent in legal scholarship--is a groundbreaking approach to understanding human development. LCHD posits that health can be optimized to allow people to thrive. In particular, through targeted interventions across sectors that support the health of children and parents, health can be optimized across the lifespan and across generations. Lifecourse research emphasizes childhood as a pivotal moment in lifelong health because childhood is when health and development are most alterable.

LCHD also surfaces the intergenerational nature of health, as well as the many systems and sectors that impact health. Like Tina and her baby, the health of parents, children, and future generations is highly influenced by a range of social and structural determinants far outside of healthcare, such as education, employment, and housing. Therefore, interventions through law should aim to eradicate maternal disparities in access to and within healthcare facilities and also in the places and spaces in which families of color live, work, eat, learn, play, and grow throughout their lives. Along with the targeted dismantling of subordinating structures in healthcare access and delivery that has been powerfully advocated by a robust body of legal scholarship, this Article argues that health justice should also include a core goal of equitable thriving and apply LCHD strategies to law to advance that goal.

In Part I, I provide an overview of the health justice framework, which requires leveraging the law to eradicate subordination as a root cause of health inequity. This discussion provides the foundation for this Article to bring a health justice lens to maternal and child health disparities.

In Part II, I examine the U.S. maternal and infant mortality and morbidity inequity crises as well as the legal scholarship surfacing and analyzing the racialized dimensions of healthcare access and delivery that have contributed to those crises. I then examine key aspects of Lifecourse Health Development theory and its conceptualization of health as a developmental capacity. LCHD provides insights and evidence for interventions that support lifelong and intergenerational maternal and child health optimization.

To that end, the Article continues in Part II to introduce equitable thriving as a new approach to health justice. Equitable thriving draws on LCHD research to provide evidence-based principles to guide the leveraging of law to equitably promote maternal and child flourishing, with impacts across the lifespan and across generations. It adds to the maternal health scholarship concerned with the impacts of barriers to necessary healthcare and racism and bias within healthcare by drawing on lifecourse science to examine multi-sectoral conditions necessary for lifelong and intergenerational maternal and child flourishing. Part II concludes by addressing potential limitations and critiques of this approach.

In Part III, I articulate four organizing principles to guide legal approaches to equitable maternal and child thriving. If the goal is not just survival and the absence of disease in snippets of time, but health optimization, well-being, and flourishing (or “thriving”) across the lifecourse, LCHD research shows that law should embrace approaches to maternal and child health justice that are (1) preventive, (2) intergenerational, (3) multisolving, and (4) community-led. For each of these principles, I provide case studies in areas of law outside of healthcare to exemplify how legal determinants of health can be leveraged to facilitate equitable thriving.

I conclude by arguing that equitable thriving requires that law and legal systems provide people with the conditions needed to thrive, from pregnancy to childhood to parenthood and onward. Legal interventions across a wide range of laws that implicate health must embody whole-person, whole-family, and whole-community approaches to supporting children and families, with the ultimate aim of equitable human flourishing.

[. . .]

Tina's story does not have to end with further entrenchment of health injustice. Envision a world where she, her daughter, and future generations have access to the conditions critical to building good health and thriving across the lifecourse. As a new LCHD-informed approach to health justice, equitable thriving does not settle for a goal of reduction of disease or premature death; instead, it advocates for the development of law and policy that explicitly support human flourishing for those who have been deprived of that foundational freedom. Specifically, it calls for preventive, intergenerational, multisolving, and community-led approaches to achieve health justice. These principles embody a whole-person, whole-family, and whole-community view of well-being. Equitable thriving sets high goals for law's role in health equity, with ambitions to improve the lives of parents and children through a better understanding of how health and flourishing can be optimized through law.

Equitable thriving is informed by LCHD and argues that LCHD research provides both a conceptual paradigm and an evidence base for the use of law to address negative drivers of health that keep racially minoritized parents and children from thriving. Within public health research, LCHD has been characterized as ““increasingly productive and impactful” because it promotes a paradigm shift away from the focus on incremental improvement of prior models of disease causation, in turn creating ramifications for how health is measured and what the goals of our country should be in regards to health. This theory recognizes “the tremendous plasticity of humans” and the ways in which law can cultivate the conditions necessary to consign maternal and infant health disparities to our nation's history and to ensure that universal opportunities to thrive become our present and future. In addition to the aim of eliminating health-harming subordination, the health justice framework should also include equitable thriving as a core aspiration.

To achieve that goal, equitable thriving acknowledges that interventions enacted at certain parts of the lifecourse have ramifications across one's entire lifespan and across that of the next generation. Indeed, health should not be viewed within a moment of time. The research surrounding lifecourse health mechanisms underscores that maternal, infant, and child health pose key opportunities to reduce harms and promote positive conditions to advance health equity. In fact, understanding that health mechanisms stretch across the lifespan, across generations, and well past the doctor's office and the delivery room is critical to maternal and child health justice. As legal scholarship continues to call for plans to reduce mortality and morbidity, equitable thriving provides strategies for maternal and child flourishing across the lifecourse as additional requisites for maternal and child health justice.

Just as it grounds the work of law in a scientific evidence base, the equitable thriving approach also radically reimagines power dynamics, reflecting the imperative that interventions to promote health must “also embrace analytically the exercise of power.” Maximizing the impact of the equitable thriving framework for racially minoritized populations requires promoting the power of these communities to not only participate in--but to lead and guide-- research and policy change efforts.

The principles of equitable thriving are far-reaching. They can be applied to opportunities for equitable enforcement of laws on the books and for law reform well beyond the specific areas of law discussed herein. The four principles of equitable thriving are guideposts that can be used to identify opportunities to advance maternal and child health justice across many areas of law that implicate health. For example, environmental justice approaches could benefit from equitable thriving analysis. The placement of a toxic waste facility near a school in a predominantly Black community could implicate equitable thriving as a result of the health harms that may develop across the lifespan and across generations. Immigration justice may similarly implicate equitable thriving. When Latine immigrant children are systematically subjected to destructive family separation practices, those experiences can contribute to toxic stress that is correlated with chronic health problems in adulthood. Leveraging environmental, zoning, or immigration laws to prevent and mitigate these challenges in ways that embody the four principles of equitable thriving could help to advance maternal and child health justice. Researchers, policymakers, and advocates alike can use the equitable thriving lens to assess the efficacy of a wide range of laws or their implementation in advancing maternal and child health justice.

Equitable thriving may also have application beyond maternal and child health, especially in light of its emphasis on the interconnections between an individual's health and the health of those around them. LCHD began with investigations into the intergenerational health mechanisms between maternal and fetal health but has grown to envision leveraging maternal and child health in ways that can influence the future health of those children as adults and of their children and grandchildren for generations. And LCHD continues to develop and evolve with new scientific understanding. As such, equitable thriving sees individuals in the context of the health of those around them, including their family and community members, and the evolving research could offer additional lessons for other forms of justice and for other populations. Future work could examine the role of equitable thriving in assessing approaches in law to advance disability justice, elder justice, or justice for other populations.

Equitable thriving brings lessons from science to questions of justice. Indeed, “[i]t is impossible to talk about life-course patterns of health without talking about justice.” And justice necessitates that everyone has the freedom to thrive--throughout their lives and across generations.

Associate Professor, Georgetown University Law Center; J.D., Stanford Law School; B.A., University of Maryland. © 2024, Yael Zakai Cannon.