Abstract

Excerpted From: Danielle Pelfrey Duryea, Peggy Maisel, and Kelley Saia, Un-erasing Race in a Medical-legal Partnership: Antiracist Health Justice Advocacy by Design, 70 Washington University Journal of Law & Policy 97 (2023) (78 Footnotes) (Full Document)

 

DuryeaMaiselSaiaJust before COVID-19 began to overwhelm the United States, a physician came to some law clinic teachers with a problem related to another epidemic altogether. State law, Dr. Saia explained, was commonly interpreted to require health care providers and birthing hospitals to report to state authorities any baby born to a person taking prescribed medications for opioid use disorder (“MOUD”). The relevant Massachusetts statute reads:

“A mandated reporter who, in his [sic] professional capacity, has reasonable cause to believe that a child is suffering physical or emotional injury resulting from ... physical dependence upon an addictive drug at birth, shall immediately communicate with the [D]epartment [of Child & Family Services] orally and, within 48 hours, shall file a written report with the department detailing the suspected abuse or neglect ...

Even at institutions that interpret the statutory language in less absolute terms, Dr. Saia explained, many health care providers fear threats to their professional licensure if they do not report babies born to people with substance use disorders (“SUDs”), including those receiving the evidence-based standard of care for opioid use disorder (“OUD”), regardless of whether the child is at risk of harm. As a result of both the law and societal stigma associated with addiction, many patients (and similarly situated people around the state) were becoming unnecessarily entangled in months- or years-long involvement with Massachusetts authorities, placing stress on their recoveries. Sometimes, unwarranted involvement still led to removing children from their birth parent(s), with demonstrated serious effects on both recovering parents and child health and development. Many potential patients went without pre- and perinatal care, addiction treatment, or both. This largely resulted from fear of becoming caught up in family regulation and/or penal systems or out of mistrust of the medical system. Importantly, the doctor explained, comparing her clinic's patient demographics with the hospital's overall patient population, she and her colleagues inferred that these potential patients' forgoing treatment were disproportionately Black.

A state commission had recently convened to recommend reforms to the Massachusetts' mandated reporter law--not in response to any of these issues, but to the revelation that USA Gymnastics team doctor Larry Nassar had sexually abused hundreds of girls, including several Olympic athletes from Massachusetts.

What could Boston University School of Law do to make a difference for Dr. Saia's patients--and for the people (parents-to-be, parents, and children) who might be?

In February 2020, the three of us agreed to explore the possibility of a new medical-legal partnership (“MLP [Medical-Legal Partnership]”) that would support patients of Project RESPECT, a regional referral center and medical home for the treatment of substance use disorder in pregnancy. Project RESPECT provides a comprehensive continuum of integrated perinatal care and addiction recovery treatment that spans from preconception counseling to long-term postpartum recovery. Established in 2006, Project RESPECT currently serves 150 birthing parent-baby dyads each year--a volume that continues to increase. Project RESPECT's clients represent a highly vulnerable population with significant histories of trauma, medical and psychiatric comorbidities, intimate partner violence, housing and food insecurities, and conflict with the legal system. OUD is the most common diagnosis among RESPECT's clients. Through a comprehensive program, patients have access to barrier-free and on-demand treatment, including acute, in-hospital stabilization and MOUD including methadone, suboxone, or naltrexone. Once stabilized on MOUD, clients participate in an intensive prenatal care and recovery curriculum through RESPECT's out-patient services. These services include relapse prevention visits with RESPECT's multidisciplinary team made up of nurse care specialists, licensed clinical social workers, peer recovery specialists, and obstetric and psychiatric providers. Individualized out-patient treatment plans are designed based on disease severity and recovery support needs.

At the time, the three of us envisioned launching a fully-integrated MLP [Medical-Legal Partnership] incorporating 1) direct legal services, 2) mutual relationships and capacity-building between legal service and health care providers, and 3) advocacy for systemic change to support the health and wellbeing of the Project RESPECT patient population. Not quite two pandemic years in the making, the Boston University School of Law's Health Justice Practicum (“HJP”) took its first steps, with six students and a systems change project focus, in January 2022.

Between the two of us lawyer-teachers, we had encountered “child welfare” interventions as part of representing survivors of intimate partner violence, worked on racial health inequities in a community-based coalition, and understood the opioid crisis from a health policy perspective. We each brought extensive experience in medical-legal partnership as well. But both of us had much to learn about addiction and its treatment, the family regulation system, and the particular confluence of social and structural determinants of health in the lives of low-income pregnant and parenting people with SUDs--most identifying as women. As we learned, we saw clearly that every aspect of this confluence was deeply racialized. If we looked at systems change through the lens only of our medical partner's disproportionately white patient population, the HJP would effectively be, in Llezlie Green's evocative phrase, “erasing race.” Galvanized by the renewed urgency of racial justice movements, we thought this outcome would be unacceptable, particularly in an area like family law, which is so inextricably bound up with the history and present reality of race, especially anti-Blackracism in the U.S. But, as this Essay will explain, the fact that our MLP [Medical-Legal Partnership] medical partner's patients overwhelmingly identify as white actually presented an occasion for “un-erasing race” and for framing the HJP's work specifically as an antiracist health justice project.

Part I will situate the HJP within the spectrum of MLP [Medical-Legal Partnership] models and discuss increasing recognition of MLP [Medical-Legal Partnership] as a public health tool, not just a direct legal services delivery model. It will also note important critiques of its racial equity record. Part II will describe the curriculum of the HJP's framing seminar component, which is informed and inspired by critical race methodologies, including the work of Angela Onwuachi-Willig, Dean of Boston University School of Law (“BU Law”), as well as by the work of noted historian and public intellectual Ibram X. Kendi, Director of the Center for Antiracist Research at Boston University, and recent writing by fellow clinicians Norrinda Hayat, Medha Makhlouf, and others. Part II will also outline the HJP's first semester focus on systems change advocacy and describe how centering race in supervision, rounds, and individual reflection supported students' critical and systemic appraisal of existing law and policy, options for response, and their (and our own) fieldwork. Finally, this Part will reflect on the law faculty members' positions as white women supervising this fieldwork. Part III will discuss why and how--in conjunction with ongoing Project RESPECT community engagement--the HJP's population legal needs assessment identifies and seeks to counteract the erasure of Black pregnant and parenting people with SUDs. The Conclusion will offer some provisional thoughts on continuing to improve the HJP. It will also discuss how centering racial health justice in an MLP [Medical-Legal Partnership] addresses new American Bar Association Standard 303(b), which requires law schools to “provide substantial opportunities to students for ... the development of a professional identity,” as well as new Standard 303(c), which requires law schools to educate students about “bias, cross-cultural competency, and racism.”

[. . .]

The preparation for, and first semester of, the HJP was, obviously, just a start. It was only a tiny beginning of a process of naming and acting to dismantle structural racism embodied in laws and policies affecting low-income, pregnant, and parenting people with SUDs. There is much room for improvement in upcoming semesters both in the classroom and in the fieldwork. Yet even the first semester seems a promising example of how academic MLP [Medical-Legal Partnerships] that undertake to be antiracist by design can 1) significantly change the terms of the conversation about social determinants of health and 2) help to fulfill two new curricular goals that are now required of all law schools by the American Bar Association. Such MLP [Medical-Legal Partnerships] can offer myriad opportunities both to develop law students' professional identities, and to educate on bias, culturally responsive lawyering, and racism by responding to and reflecting broadly on the social determinants of health and on structural racism as the root cause of racial health inequities, specifically.

Most law school clinical and externship programs recognize professional identity formation as an important outcome of experiential learning, whether specified as a formal learning goal or not. MLP [Medical-Legal Partnerships] have an advantage in teaching professional identity because the norms, obligations, and values of at least two professions are always in play, creating opportunities to compare and contrast. Several academic MLP [Medical-Legal Partnerships] have also regularly included one or more medical or social work students in a rotation through the MLP [Medical-Legal Partnership] to enhance the inherently interprofessional experience of participating law students and health sciences students alike.

As the ABA has now made clear, however, acculturating law students into “what it means to be a lawyer and the special obligations lawyers have to their clients and society” specifically includes:

the importance of cross-cultural competency to professionally responsible representation and the obligation of lawyers to promote a justice system that provides equal access and eliminates bias, discrimination, and racism in the law.

An MLP [Medical-Legal Partnership], particularly one with a strong systems change component that centers the experiences of racially minoritized people, can provide an opportunity for students gain deep insight into the nature of “bias, discrimination, and racism in the law.” That is, bias, discrimination, and racism in the law are structural and intersectional, not incidental and individualized. This opportunity is present regardless of the substantive legal issue and, as efforts to “un-erase race” in our partnership suggest, whatever the MLP [Medical-Legal Partnership] medical partner's patient population demographics may be.

An MLP [Medical-Legal Partnership] that centers racism and minoritized people likewise presents rich opportunities for students to learn the “skill” of culturally responsive lawyering in direct client service as well as in systems change work. No longer a “special topic” in class or occasional presence in case discussions/supervision meetings, understanding and discussing race and racist dynamics can be normalized as an essential part of lawyering in service of clients at the intersection of racial and other identities--no longer a subject to be avoided in those settings. In systems change work, an MLP [Medical-Legal Partnership] that centers race and racism can introduce students to multiple forms of lawyering for racial justice, including community lawyering and movement lawyering, in addition to individual client-centered representation that recognizes clients as the experts in their own lives. The latter includes “... their own lived experiences as Black people in America, [which are] literally central to understanding them and their legal cases and what will make them whole.”

Notwithstanding the title of this journal issue, we know our efforts are not truly “cutting edge.” The HJP is far from accomplishing even what Norrinda Brown Hayat has called the four “partial, preliminary, and contingent” steps toward building an antiracist clinical legal pedagogy:

(1) centering Blackness; (2) mapping critical race theory onto clinical pedagogy; (3) citing Black women; and (4) aligning with Black folx organizing for the Afrofuture where Black Lives Matter is not an aspirational proposition.

The point of this Essay is simply to call back to those who have called out--in print as well as in countless conversations--for clinical legal education generally and MLP [Medical-Legal Partnerships] in particular to rise to the antiracist challenge.


 Danielle Pelfrey Duryea,,,Lecturer & Clinical Instructor and Co-Director, Health Justice Practicum, Boston University School of Law.

Peggy Maisel,Clinical Professor and Co-Director, Health Justice Practicum, Boston University School of Law.

Kelley Saia, Medical Director, Project RESPECT at Boston Medical Center and Assistant Professor of Obstetrics and Gynecology at Boston University Chobanian and Avedisian School of Medicine, Boston, Mass.