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Excerpted from: Julie Hwang, The Road to Reducing Racial Disparity in the Healthcare System: Affordable Care Act as Domestic Implementation of CERD, 8 Georgetown Journal of Law & Modern Critical Race Perspectives 171 (Spring, 2016) (160 Footnotes) (Full Document)


UNHumanrightsRacial disparity in the healthcare system has been criticized as one of the major social and economic problems in the United States. Racial and ethnic minorities consistently face challenges in the healthcare system and subsequently face higher mortality, lower health status, and higher propensity for certain illnesses and diseases. Challenging these racial disparities in the healthcare system under Title VI of the Civil Rights Act of 1964 has been almost impossible after Alexander v. Sandoval, where the U.S. Supreme Court (“Court”) held that the disparate-impact regulation does not create a private cause of action, the effect of the decision being a lack of legal recourse to address healthcare disparities. Many scholars argue that the government violated its international obligation under the International Convention on Elimination of Racial Discrimination (“CERD”) by barring relief that might eliminate systemic racial and ethnic disparities in the healthcare system and by demanding that healthcare reformation comply with CERD.

In the context of growing disparities in the healthcare system, Congress enacted the Patient Protection and Affordable Care Act (“ACA”) in 2010. The ACA is intended to decrease the number of uninsured people and to reduce racial disparities by requiring providers to collect and report data regarding race, ethnicity, gender, and disability. It is too early to assess the ACA's overall impact in reducing racial disparities in healthcare, but Congress has promoted equality in the healthcare system by adopting several provisions that specifically target causes of racial and ethnic disparities.

This article examines the ACA through the lens of international law and its potential impact in interpreting domestic implementation of non-self-executing treaties. Part I addresses racial disparity in the healthcare system and how the ACA attempts to resolve the problem. Part I also briefly explains the history and relevant articles of the CERD. Part II summarizes the history and status of non-self-executing treaties in the U.S. legal system by examining the Constitution and landmark Supreme Court cases. Finally, Part III argues that the ACA provisions are domestic implementations of CERD Article 5, and thus promote the status of CERD from a non-self-executing treaty to part of U.S. federal law. This note concludes that the ACA created a private right of action under CERD for disparate-impact health regulation, providing legal remedies for impacted people.
. . .

Many scholars have long criticized that the U.S. violates its obligation under CERD by neglecting racial and ethnic disparities in the Medicaid and Medicare systems. Although the U.S. was one of the earliest signatory parties and ratified the treaty in the 1990s, Congress labeled CERD as a non-self-executing treaty with no domestic implementation. Despite the language in the Constitution that all treaties are part of “supreme law of Land,” non-self-executing treaties have not had a strong presence in the U.S. domestic courts after Medellin.

However, the text and the legislative intent clearly indicate that the ACA was enacted in part to address the racial and ethnic disparities. Because the ACA is a clear attempt to reduce racial disparities, the ACA is in accordance with CERD Article 5(e)(viii) and therefore is domestic implementation of CERD. This argument will also survive an interpretation challenge because under the Charming Betsy principle, the courts must interpret domestic legislation in accordance with CERD. This argument will also survive applicability of CERD to individually affected people because CERD is intended to eliminate racial discrimination and disparity.

The ACA as a domestic implementation of CERD is important because this is the first time that a non-self-executing human rights treaty has been domestically implemented. Currently, challenging disparate-impact legislation is difficult under the Sandoval precedent. Domestic implementation of CERD establishes a private cause of action and minorities who have been impacted by disparate health laws can now seek remedy in a federal court under this theory. It also promoted the status of CERD in the U.S. from a non-self-executing treaty with no impact to a domestically implemented federal law. The ACA should be viewed as domestic implementation of CERD, promoting its status from a non-self-executing treaty to part of “supreme law of the Land.”

Georgetown University Law Center, Juris Doctorate, 2016. ⌐ 2016, Julie Hwang.

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The University of Dayton School of Law