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Excerpted From: To Nhu Huynh, Legal Epidemiology for Racial Health Equity, 21 Houston Journal of Health Law & Policy 411 (2022) (197 Footnotes) (Full Document)



It's January 2020. Houston-based doctor Cedrick Smith blows the whistle on Facebook. He follows the post with some self-help tips: “vigilant hand washing,” “eat whole crushed garlic,” and “sign payment pads with your knuckle.” As a Black director of an urgent care center, Dr. Smith has no disillusion about what is about to unfold in his community in the coming months.

Fast-forward to March 2020. As the coronavirus unassumingly makes its way through the streets of Houston and into the bustling rodeo-going crowds, it lays bare the pronounced health vulnerabilities in communities of color, especially Blacks. By September, Black men and women are 4.6 times more likely to get hospitalized from COVID-19 complications than Whites in any Houston hospital. Across the nation, they similarly face the disproportionate wrath of COVID-19. In Kansas City, Missouri, 40 percent of those infected are Blacks or Latinos, even though those groups make up only 16 percent of the state's population. Blacks also have the highest nationwide COVID-19 death rates--two or more times higher than the rate for Whites and Asians.

Racial health disparities run deep in America. Blacks have higher rates of diabetes, hypertension, and heart disease than other groups. Black children die from asthma complications 10 times more often than White children. Black adults also face increased risks of dying from cancers. For example, Black women are more likely than White women to die of breast cancer, while Black men are more than twice as likely as Whites to die of prostate cancer.

The rule of law permeates every aspect of society, but its impact on racial health disparities is often poorly understood. Well-designed laws can build strong healthcare systems, produce effective drugs and vaccines, create healthier and safer workplaces, and improve our built and natural environments. In contrast, poorly-designed, - implemented, and - enforced laws can harm marginalized populations. Yet, few studies attempt to evaluate the benefits and harms of laws on health outcomes in these communities. The limited efforts, if any, suffer from lack of data, strong methodology, expertise, and funding. Laws that can bridge the health equity gap are often not adequately scaled, while laws that entrench disparities persist.

This Comment advocates for legal epidemiology as a tool to achieve racial health equity. Legal epidemiology is the scientific study and deployment of laws as a driver in the cause, distribution, and prevention of disease. Primarily developed to evaluate laws, this emerging field plays a key role in health equity advocacy in two ways. First, legal epidemiology produces more scientifically convincing evidence on health disparities. Its methods allow us to look beyond observable disparities and into their root causes. They also reveal how variations in legal designs in different jurisdictions produce different impacts over time on different racial groups. A better understanding of such relationships will enable better design and integration of policies into promoting racial health equity. Second, funders and decision-makers can benefit from more actionable and timely evidence produced by legal epidemiology to deploy time and resources more effectively. Legal epidemiology can help advocates amplify the narrative that health is not only a basic human need--health is a civil right.

This Comment illustrates how legal epidemiology can catalyze racial health equity with three case studies. The first case study describes legal mapping efforts to track legal responses to COVID-19 in 50 states and the District of Columbia. The second case study examines the impact of state preemption of inclusionary zoning policies on health outcomes among different racial groups. Inclusionary zoning laws are local efforts to create affordable housing by requiring or encouraging developers to make certain housing units ordinances disproportionately affect Black residents.). available at below-market prices. States can override these efforts with preemption laws. Using legal epidemiology tools, researchers compare health outcomes in states with preemption and without preemption laws. They find robust evidence that preemption of inclusionary zoning was negatively associated with health outcomes, particularly for Black adults.

The third case study features a sophisticated policy surveillance, which is another type of legal epidemiology research. The project evaluates the effect of 23 state-level earned income tax credit laws on birth outcomes by race and ethnicity from 1994 to 2013. Although earned income tax credit laws improve birth outcomes in general, after stratifying the impacts by race, the research finds that Black babies experience the biggest outcome improvement compared to babies of other races as a result of the tax credit policy.

As pieces of a puzzle, each case study tells a story. Efforts to generate user-friendly legal databases to track laws across jurisdictions over time are the first steps. They lay a solid foundation for more sophisticated legal epidemiology analyses, as illustrated in the second and third case studies. Policy assessment and surveillance methods help establish the cause-and-effect relationship between laws and racial health outcomes. Together, they unveil the bigger story: race-neutral policies rarely have a race-neutral effect in practice. Whether in a public health emergency, the housing market, or the tax area, laws across sectors can have a profound impact on Blacks' health. This Comment tells this story to advocate for more widespread adoption of legal epidemiology to further the health equity agenda.

The Comment proceeds in four parts. Part I explains why it is critical to intergrate racial health equity into policy decisions. Part II provides a primer on legal epidemiology and discusses the unique features of the field that distinguishes it from other public health law subfields. Part III presents the case studies on legal epidemiology. Part IV outlines the roles legal epidemiology can play in the health equity advocacy agenda and recommends the next steps to get there.

The Comment uses the definitions of “health equity” and “health disparity” as adopted by Healthy People 2020. “Health equity” means the “attainment of the highest level of health for all people. Achieving health equity requires valuing everyone equally with focused and ongoing societal efforts to address avoidable inequalities, historical and contemporary injustices, and the elimination of health and health care disparities.” “Health disparity” means “a particular type of health difference that is closely linked with social, economic, and/or environmental disadvantage.” Although they are often used interchangeably, health equity implies fairness in the distribution of health, whereas health disparity is a neutral concept that implies measurable difference in the distribution of health.

[. . .]

Racial justice in America has reached an inflection point in 2020. The COVID-19 pandemic and the Black Lives Matter movement following the death of George Floyd catapulted deeply-rooted health disparities and racial injustice issues to the forefront. Long called a “forgotten aim,” health equity has been a lofty but elusive mission still in search of effective solutions. At the forefront, political will is urgently needed to bring about real transformations. But America has come to realize that the fight is not just about passing a new health law; it is not just about increasing budget for a certain disease that disproportionately affects Black people; it is not just about advocating for more health education and awareness for Blacks; it is also not just about improving the quality and access to the health system. The fight extends beyond healthcare. It is about understanding and acknowledging the causal pathways through which institutions such as housing, transportation, court, or tax system shape the health experiences of marginalized communities-- both negatively and positively--and securing the political will to prioritize health equity in law-making across sectors.

Legal epidemiology is spotlighting these causal pathways. The three case studies feature collaborations among teams with J.D., M.P.H., Ph.D., M.S., and M.D. degrees. The work came from schools of law school, public health, arts and sciences, and from advocacy organizations. The teams addressed topics in public health emergency responses, housing regulations, and family economic security policies. The interdisciplinary collaborations and range of topics underscore the broad, interdisciplinary nature of health disparity issues. Although the laws and policies discussed are race-neutral and are not related to health care, they have a profound impact on health.

As illustrated in the case studies, legal epidemiology can help guide the research and advocacy agenda to advance health equity. First, more policy assessment and surveillance studies will be needed to monitor and evaluate laws. For example, tracking legal responses to COVID-19 was a timely effort to help design effective legal solutions, especially during a time of crisis when the country experienced almost 3000 COVID-19 deaths per day and executive leadership needed strong policy guidance more than ever.

Second, policy assessment and surveillance can help design more equitable legal solutions and enforcement mechanisms. The study of state preemption of inclusionary zoning reveals that the rise of preemption could perpetuate racial health disparities. This impact should be mitigated by considering alternatives to preemption or securing local commitment to providing more affordable housing. In contrast, laws such as state earned income tax credits are effective policy tools to address persistent racial disparities in birth outcomes. They should be scaled.

Third, if properly disseminated and amplified through advocacy networks, legal epidemiology findings can engage communities, forge partnerships, and build political will. In the past, most legal assessments have been about observable correlations between a law in one locality and health outcomes. Despite providing very valuable information, they stop shy at making explicit causal inferences to inform--and convince--policy-makers about the direct impact of their decisions on people's health. By strengthening the causal inferences, legal epidemiology provides advocates with enhanced and convincing narratives on health equity.

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