A Legal Paradigm for the Health Inequity Crisis

Abstract

People of color and the poor die younger than the white and prosperous. And when they are alive, they are sicker. Health inequity is morally tragic. But it is also economically inefficient, raising the nation’s healthcare bill and lowering productivity. The COVID pandemic only, albeit dramatically, highlights these pre-existing inequities. COVID sufferers of color die at twice the rate of whites. The cause, in large part, is structural inequality and racism. Neither the popular nor the scholarly discussion of health care inequity, while robust, has translated into palpable and rapid progress. This Article describes why health inequity has so far proven intractable. In the healthcare system, no one actor has both adequate incentive and adequate wherewithal to create progress. The healthcare system cannot solve the problem alone. To jumpstart reform, the Article makes the case for a new regulatory approach, grounded in principles of democratic experimentalism, cooperative federalism, and adaptive management. It draws inspiration from the examples that the Health Insurance Portability and Accountability Act (HIPAA) and the Clean Air Act provide. A federal health equity mandate, with funding and penalties for state non-compliance, will spur collaboration between federal, state, local, public and private entities, and start the U.S. on the path to remediating health care’s inequities.