Reformed But Not Repaired

Nia Johnson January, 2025

Traditionally, scholars and policymakers concerned with making improvements to health care systems and structures have focused on insurance reform. The ACA— the United States’ most recent and substantial healthcare reform—was hoped to be an intervention that would help provide equity to all Americans. Indeed, scholars and policymakers viewed increasing access to health care through insurance coverage as a victory. And yet, despite these interventions, the COVID-19 pandemic revealed a number of policy gaps that disproportionately impacted racial minorities. Specifically, racially marginalized Americans still experienced the starkest disparities in COVID-19 complications and mortality. This has left scholars and policymakers to answer why these disparities existed in an environment where there was supposed to be greater equity across demographic groups in their access to healthcare.

This Article contributes to these conversations by exploring this gap. Specifically, this Article argues that insurance reform is ill-suited to dismantle structural inequalities in health. Indeed, this Article suggests that structural racism’s impact is so profound that it may dull the impact of insurance policy. Racialized minorities that have consistently experienced de jure and de facto structural racism, decreased access to desirable social determinants of health, and poor public health infrastructure are not as equipped to weather major health crises as communities that do not have these challenges. The impact of historically discriminatory policies on minority communities set them up for public health failure and persistent health disparities. Utilizing a case study on Flint, Michigan and an original empirical study on lead exposure and COVID-19 mortality, the Article examines the relationship that structural racism has with social determinants of health, with a specific emphasis on infrastructure. To make progress on equity within the health care system, policymakers and scholars must reframe their thinking from insurance reform to more expansive viewpoints on public health policy within the United States.

Introduction

Health insurance reform is a core facet of health law and policy discourse. Americans are heavily dependent on health insurance as a primary method of offsetting medical costs.¹ Americans have also historically been concerned about the rising cost of healthcare in the United States and feel the crushing and debilitating effect of medical emergencies on their finances.² It is also intensely regulated by both federal and state forces—not only because as a consumer good, but also as an employer of hundreds of thousands of Americans.³ Health insurance has also proved to be a valuable economic incentive to promote care and reduce financial pressures, as demonstrated by the RAND Health Insurance Experiment and the Oregon Health Insurance Experiment. ⁴

In recent years, the Patient Protection and Affordable Care Act (ACA)’s passing in 2010 further solidified insurance reform as a cornerstone of modern health law and policy discourse. Lessons learned from the passing of this landmark achievement, along with insights and critiques of the legislation itself, provided new insights into how affordable care could transform individuals’ lives.⁵ Though scholars and policymakers acknowledged it as imperfect, the ACA was largely heralded as the crown jewel of health policy.⁶ It did what many presidential administrations were unable to do in the past—increase access to healthcare and shrink the uninsured population from more than 46.5 million to less than 26.7 million people.⁷ The Affordable Care Act was framed as an equalizing measure, and Congress equipped it with disparities mitigation provisions which contributed to narrowing the health insurance coverage gap between Black Americans and White Americans.⁸

In theory, mass healthcare reform with equalizing goals should have placed the United States in a better position. However, about a decade after the ACA’s passage, the world was met with the COVID-19 pandemic. The World Health Organization (WHO) declared COVID-19 a pandemic in March 2020.⁹ It left more than one million people dead in the United States.¹⁰ It especially laid waste to racially marginalized individuals. Black Americans were dying from COVID-19 at higher rates than White Americans. Counties with higher populations of Black Americans experienced higher rates of COVID-19 than counties with higher populations of White Americans.¹¹ Ten years after the passing of the ACA Black Americans were in a better position in some ways—there was a significant reduction in racial insurance coverage disparities by this time. Yet, Black Americans still paid a substantial price during the COVID-19 pandemic with higher rates of mortality, illness, and complications from COVID-19.¹²

The logic that providing individuals with more affordable health insurance coverage will result in better health outcomes makes intuitive sense. If the state provides individuals with the trimmings of the middle class and wealthy, then they will have the health outcomes of the middle class and wealthy. However, insurance reform alone is unable to address health disparities. The preoccupation with insurance reform has blurred our vision of what health is and how it functions. Much of an individual person’s health is determined by where they live and the resources they can access.¹³ These qualities are closely tied to equity but are also hamstrung by the history of racial discrimination in the United States.

Black Americans live in communities that bear the brunt of infrastructural failures throughout history. From slavery to today, Black Americans and other minorities have lived in unsafe and dilapidated housing, had substandard public works options, and lived in more polluted environments compared to White Americans.¹⁴ All of these factors contribute to poor health outcomes. Unsafe housing is associated with increased risk for asthma-related emergency room visits, injuries, and lead poisoning.¹⁵ Public works directly address health infrastructure such as hospitals and water quality.¹⁶ Polluted environments increase risk of cancer, heart disease, kidney failure, and other illnesses.¹⁷ Historically, individuals associated these illnesses with individual behavior—thus quietly pushing meaningful conversations about what promoted the disproportionate burden of illness beneath the surface.

With events like the COVID-19 pandemic forcing a global dialogue on health equity, it is critical to produce scholarship on structural racism’s intersection with health. Typically, community infrastructural features that contribute to good health tend to be more numerous in areas where White Americans live. Additionally, Black Americans live under greater stressors due to the impact of racism,¹⁸ which may reduce life expectancy and leaves them in worse position to fight against infection and disease.¹⁹ The end result is that structural racism impacts health outcomes, which can be seen through the public health infrastructure in nonwhite communities.

The chaos of the past few years warrants a reexamination of health disparities and public health failures. The United States had available capital, professed innovation, and applicable research present for use. And yet of the one million Americans that died from COVID-19, a disproportionate number of those deaths were individuals of color.²⁰ What has become apparent during the COVID-19 pandemic is the impact of structural racism on Black Americans’ health and the reckoning that followed. As we learn more about space and place, its intersection with law, and how it impacts health, the inherent limitations of focusing efforts on insurance reform become quite stark.²¹ Policymakers and scholars must tackle the problems of racial disparities within healthcare via a range of efforts— efforts that should include insurance reform, but not to the exclusion of other interventions.

Insurance reform is one method for addressing health, but it should not be the center. The multifaceted nature of health, combined with the scholarship that addresses how health inequities are perpetuated by unjust systems, requires an openness to an expansive approach for reducing health disparities. This Article hopes to focus on what a more expansive approach could be. This Article contributes to two bodies of scholarship: (1) scholarship on structural racism and health and (2) scholarship that critiques the effectiveness of insurance reform. This Article argues that insurance reform is ill-suited to dismantle systemic inequalities in health, as is revealed when one looks to public health crises. To make this argument, this Article relies on case studies and empirical evidence from the COVID-19 pandemic.

Part I of this Article provides a survey of empirical evidence that highlights the effectiveness and limitations of insurance reform. Part II provides two examples—a case study and an original empirical analysis on the impact of structural racism on marginalized communities and its connection with health. This Article uses Flint, Michigan as a case study to demonstrate the ways insurance reform did and did not shift their health outcomes, and how those shortcomings manifested during the COVID-19 pandemic. This Article also uses an original empirical study to demonstrate how these inequities operate at the national level by analyzing the relationship between elevated blood lead levels in children and COVID-19 mortality. The upshot of Part II is that despite a huge investment in the ACA and insurance reform, empirical evidence suggests that racial disparities continue to persist.

Part III puts forth the argument of this Article. Specifically, this Article argues that insurance reform is ill-suited to dismantle systemic inequalities in health. It also suggests that structural racism’s impact is so profound that it may dull the impact of insurance policy. This argument has a variety of implications for those studying health law and policy. It also provides some examples of operationalizing a structural approach to health equity while also utilizing the legal tools that are already available to us. Part IV addresses a range of questions or concerns raised by this Article’s argument.

I. Where Insurance Reform Ends and Health

Disparities Begin

A. What Insurance Reform Has Accomplished

One of the most important modern advances in health law and policy has admittedly been insurance reform. In 2010, President Barack Obama signed into law the Patient Protection and Affordable Care Act.²² It was a political compromise situated to expand coverage within a feasible and American context.²³ However, it was also heralded as an unprecedented victory for equity amongst Americans.²⁴ Almost 15 years after the passage and implementation (and attempted dismantling) of the ACA, there is a plethora of literature examining the impact of its passing. This section will provide an overview of empirical evidence as to what the ACA has done to promote health equity. It is not meant to be exhaustive, but rather it highlights major outcomes of the ACA’s health impact.

First, the ACA shrunk the disparity in insurance coverage between minorities and White Americans. Coverage disparities concerned healthcare providers, policymakers, and citizens alike long before the ACA.²⁵ Lack of insurance coverage discourages individuals from seeking out care, reduces opportunities for care coordination, and leaves individuals with unmet medical needs.²⁶ Additional analyses also found that disparities in insurance coverage can also contribute to individual and familial financial strain and bankruptcy—suggesting that increasing health insurance coverage has other equalizing impacts.²⁷ In 2008, the American Community Survey reported that 14.6% of White Americans were uninsured, compared to 25.5% of Black Americans and 41.7% of Latin-X Americans.²⁸ However, there was a shift with the implementation of the ACA. By 2014, the American Community Survey reported that 11.7% of White Americans, 20.7% of Black Americans, and 33.4% of Latin-X Americans were uninsured.²⁹ Later analysis found that these increases in coverage held through 2016, with additional modest coverage gains for most racial and ethnic groups.³⁰

Additionally, insurance reform also decreased the number of emergency department visits from racial and ethnic minorities. Even though emergency departments are designed for immediate medical concerns that cannot wait for a traditional doctor’s visit, The Emergency Medical Treatment and Labor Act (EMTALA) requires emergency departments to provide care to all individuals regardless of ability to pay or insurance coverage.³¹ Emergency services are also more expensive than going to a doctor’s office.³² Health law and policy researchers have long recognized emergency room usage as an effective metric for healthcare inequities and efficiencies.³³ By utilizing Healthcare Cost and Utilization Project State Inpatient Databases (“HUCP-SID”) and State Emergency Department Databases (“HUCP- SEDD”) from the Agency for Healthcare Research and Quality, researchers found that in states that expanded Medicaid, Black-White disparities in emergency department visits significantly decreased.³⁴ These changes were not as significant for Latin-X populations or Black populations in non-expansion states, but they did decrease.³⁵

Insurance reform also shrunk disparities in specialized care among racial minorities. We see this dynamic in oncology. The ACA prompted an increase in breast cancer screenings and colonoscopy screenings among racial minorities.³⁶ Researchers also found that in Medicaid expansion states, mortality-to-incidence ratios decreased for racial minorities for breast, cervix, colorectal, esophagus, lung, oral, pancreas, and prostate cancers.³⁷ Another example of this is in dental care and oral health. Dental care is a critical component of individual health. Oral health is associated with poor outcomes in diabetes, heart disease, stroke, and lower quality of life.³⁸ Most Americans do not have adequate access to dental care, but disparities in racial and ethnic minorities’ access to dental care were even more substantial.³⁹ However, in 2014, dental benefits were folded into the Medicaid Expansion polices in multiple states. These expansions lead to decreases in dental utilization amongst racial minorities.⁴⁰ The following section will outline the blind spots of insurance reform.

B. Where Insurance Reform is Found Wanting

One area that insurance reform did not remedy was rates of healthcare utilization by racial minorities. A primary goal of the ACA was to increase access to healthcare by providing insurance.⁴¹ By expanding Medicaid to more individuals, it was expected that more individuals would utilize coverage.⁴² Researchers found that there was an increase in utilizations of healthcare services after the implementation of the ACA.⁴³ However, this did not hold for racial minorities. Uninsured racial minorities did experience significant decreases in emergency room usage.⁴⁴ But disparities in utilization of services have still persisted after major insurance reform.⁴⁵ Since the ACA reduced traditional, economic barriers to care, scholars have now determined that there are additional factors that contribute to utilization of care.⁴⁶ Some studies found that the greatest gains in screening and survival actually came from White individuals, not racial minorities.⁴⁷ Scholars also found that when individuals feel socially isolated from communities where medical services are present, they are less inclined to utilize them.⁴⁸ Others addressed the role of proximity of healthcare facilities in healthcare access—a factor this Article will address later.⁴⁹

Another area that the insurance reform did not remedy was noncoverage related racial health disparities. Though the ACA was a major policy victory, health disparities have persisted for many racial minorities. Maternal mortality rates are still quite disparate, with Black women having three times the risk of pregnancy-related death compared to White women.⁵⁰ Black Americans are more likely to die from heart disease and hypertension.⁵¹ Their rates of diabetes are also higher than White Americans.⁵² Additionally, Black Americans are more likely to receive worse quality healthcare across 40% of quality measures.⁵³ Black Americans were more likely to contract and die from COVID-19 than White Americans during peaks of the pandemic.⁵⁴ Even though racial minorities now have increased access to healthcare via insurance reform, racial disparities within health care continue to persist, prompting two points of concern. First, racial minorities are accessing care more than before, but are not necessarily getting less sick⁵⁵ Second, with increased access to care they are not getting, contracting, or experiencing illness at rates equal to Whites Americans nor proportionate to their share of the population. Given the equalizing promises and initiatives folded into Medicaid expansion, this should warrant concern.⁵⁶

Lastly, another blind-spot of insurance reform is the role of space and place as a determinant of healthcare access. Insurance reform provided health-related financial relief for many racial minorities. However, it did not address a core component of health outcomes—where individuals live. Racial minorities are less likely to have access to healthcare facilities in their immediate locales.⁵⁷ These outcomes hold in both rural and urban communities.⁵⁸ Proximity to healthcare facilities is critical because it alleviates additional socioeconomic burdens, such as transportation to obtain care, and other practical challenges, such as the willingness to obtain care at all.⁵⁹ For example, it is easier to justify taking time away from work to obtain care if the facility is closer to your place of employment because one could take less time off of work or spend less on transportation costs. It is also more convenient to receive care during emergencies if you live near healthcare facilities. Insurance reform did provide opportunities to pay for care but, if there is nowhere to do so, its functional value decreases.

The upshot is that the ACA was an incremental victory. The ACA did much to improve the lives and health of Black citizens within the United States, but, as is demonstrated in the next Part, racial health disparities persist.

II. Where Affordable Care Misses the Mark

The ACA and insurance regulation are both critical to managing the healthcare market and providing access to health services. However, those alone have not met the mark in fully mitigating health disparities in marginalized communities. In fact, they left significant gaps in our health policy agenda. Broad health disparities, access deficiencies, and gaps in utilization are some examples of this. These avenues also produce staggering consequences. Beyond the health disparities, the gaps missed by insurance reform are related to increased risk of illness, reduced life expectancy, and death.⁶⁰ Some scholars argue that these deficiencies are present because insurance reform addresses quality measures and healthcare mechanisms, rather than health itself.⁶¹ This is an accurate assessment, but I would like to propose a different perspective.

This section will demonstrate some of the areas where the pursuit of insurance reform and affordable care has fallen short. I am not implying that these endeavors do nothing for health equity. In fact, these endeavors are critical for maintaining the health infrastructure in the United States. However, equity appears to be a challenge for insurance reform methods to achieve. Clearly multifaceted, all these dynamics are related and place marginalized communities at risk of illness and death. I will use a case study that examines Flint, Michigan and its history to show how inequitable policies can linger into current public health disparities. I will then utilize an empirical study on the impact of elevated blood lead levels in children at the county level on COVID-19 mortality at the county level to demonstrate how consequences of racism can play out in devastating ways, and how providing affordable care is missing the mark. Both studies are examples of the limitations of insurance reform, the impact of structural racism on health policy effectiveness, and the long-term impact of inequality on health.

A. Flint, Michigan: A Case Study

1. Segregation and Structural Racism

Flint, Michigan is located in Genesee County. It was one of the many Midwestern cities populated by the Great Migration, with many Black Americans migrating from the South for better employment opportunities and to escape domestic terrorism.⁶² Flint also was a hub for General Motors starting in the 1920s. Many individuals, regardless of race, migrated and immigrated to work in the auto industry.⁶³ However, Flint had a long history of housing and education segregation promoted by General Motors. “Separate but Equal” was a doctrine folded into the very fabric of Flint.⁶⁴ Due to this, Black Americans in Flint were neglected long before the Water Crisis.

Black Americans generally lived in the worst areas of Flint. They inhabited two major areas. The first was the St. John community. It was the poorest part of the city and had the second largest concentration of Black Americans in Flint. It was heavily polluted, had an unfortunate reputation for the most deplorable housing in the region, and its configuration near the Flint River made it difficult to navigate.⁶⁵ The second region Black Americans generally lived in was Floral Park. Floral Park was a relatively diverse community of Black Americans, working-class White Americans, and immigrants. It was still segregated—Black Americans were only able to live near Grand Trunk rail lines. Poverty was also common. However, many professionals, domestics, factory workers, and entrepreneurs populated this community.⁶⁶ White Americans, in contrast, had access to the best areas to live.⁶⁷ Not only were they not hampered by racially restrictive covenants and segregation in general, but Flint’s city planning catered to where White Americans lived. Charles Stewart Mott’s, the largest shareholder of General Motors, influence shaped the racial dynamics in Flint.⁶⁸ His authority shaped to the construction of Woodlawn Park, all-white community filled with mansions and new homes. Woodlawn Park also contained many of the cultural institutions within Flint, such as the Flint Public Library and the Flint Institute of the Arts.⁶⁹ Racially restrictive housing covenants and administrative segregation— separating of races through administrative policies, administrative programs, and state bureaucratic powers—also maintained the Whiteness of Flint communities.⁷⁰

General Motors intensified Flint’s already present segregation. In 1919, General Motors executives established the Modern Housing Corporation Division. It was a company branch designed to create housing that enticed individuals to live in Flint.⁷¹ Shantytowns and slums were growing near their plants and factories and many workers were without stable housing.⁷² By 1933, General Motors established and invested in building new neighborhoods. They built 3000 new homes for their employees. They also provided many public works amenities like water, sewer, gas, electric, paved roads, and sidewalks.⁷³ They were affordable, requiring only 10% down payments and low interest rates. General Motors also provided two new public schools to accommodate the children of Flint.⁷⁴

However, these homes were not available to Black American buyers. General Motors expressed concern that allowing for Black Americans to live in these new homes would decrease their property values and the “quality of life” in their communities.⁷⁵ Acting on their prejudices, they used legal and informal segregation to keep Black Americans out of these neighborhoods. Informally, they stated that homes could only be single family homes, possibly to discourage intergenerational or extended family structures in General Motors’ properties.⁷⁶ They also dehumanized Black American buyers by utilizing stereotypes to create neighborhood codes such as explicitly preventing outhouses, livestock, or alcohol sales.⁷⁷ Legally, they relied on a hybridized approach that used racially restrictive housing covenants, legal action, and administrative behaviors to keep them out of these newly established neighborhoods.⁷⁸ These acts of private discrimination effectively made it impossible for Black Americans to inhabit certain neighborhoods or own certain types of property. Realtors played a huge role in perpetuating these provisions. They marketed homes using racialized housing covenants and stating that homes had “adequate restrictions to protect your home investment.” ⁷⁹ By the start of the 1940, Flint was the third most segregated city in the United States.⁸⁰ Isolating Black Americans through segregation kept them in deteriorating parts of Flint, perpetuating poor public health conditions. The following section will address those consequences.

2. Infrastructural Chaos

These actions set in motion devastating infrastructural conditions for Black American residents in Flint.⁸¹ Overt racism and racial bias in the real estate market ultimately encouraged divestment in Flint’s predominately Black communities. In 1933, the Home Owner’s Loan Act utilized residential security maps to determine risk.⁸² Both parties unfortunately used racial biases and outright racism to shape these maps. The same prejudice that was used to market homes in Flint on the real estate market was also used in determining the ratings of predominately Black neighborhoods.⁸³ Poor ratings perpetuated a cycle in which Black residents received worse rates to refinance their homes, denied opportunities to refinance their homes, or even purchase homes at all.⁸⁴ The Federal Housing Administration also discriminated against Black buyers by considering them too risky to receive mortgages.⁸⁵ These poor home ratings lingered into the 1960s. These ratings not only kept Black Americans from obtaining home ownership, but also obtaining public works renovations in their neighborhoods.⁸⁶ Suburban neighborhoods were considered less risky, and thus more primed for easy investment. So White American communities received newer and newer infrastructure, and Black American infrastructure plainly deteriorated.

Additionally, segregation perpetuated unsafe and unstable housing conditions for Black Americans. Due to the racially restrictive housing covenants and administrative sabotage of Black communities, Black Americans were unable to purchase most homes in Flint. Builders in Flint were also unwilling to build homes for Black Americans.⁸⁷ This created a rental crisis—a major public health blow for Black Americans.⁸⁸ Most individuals do not see renting as an immediate public health issue, other than impeding one’s ability to build equity. However, this created a ripple effect for Black residents of Flint. Since Black Americans were unable to own homes, they were pushed an extremely small rental market. This created a housing shortage for Black American Flint residents.⁸⁹ The shortage facilitated a host of public health consequences—overcrowding, housing instability, and ultimately homelessness for many. At various points in history, Black American organizations and White activists organized to provide housing for Black Americans. There were some victories, but there was a general distain for expansive housing policies would specifically benefit Black Americans amongst White Americans in Flint. Some of this unrest even led to riots.⁹⁰ In 1976, Mayor Floyd McCree—Flint’s first Black mayor—along with the NAACP were able to draft a bill addressing housing reform. However, White political actors gutted the bill. One of the most devastating blows to the bill was that instead of providing a legal avenue to sue for discriminatory housing practices, it made it illegal to file false claims of discrimination.⁹¹ Suing for housing discrimination became extremely risky and almost completely ineffectual. The animosity towards housing policy persisted well into the 1970s, serving as a catalyst for urban renewal.⁹²

Lastly, White flight also plagued Flint. As Black Americans started populating more of Flint, their neighborhoods experienced more neglect and the composition of the city itself became less White.⁹³ By 1960, 21% of the city’s housing was substandard.⁹⁴ In 1975, unemployment was 15-20%, and 50% for young Black Americans.⁹⁵ By 1991, General Motors reduced their workforce by 50%. They also removed themselves from the political aspects of Flint, viewing the political climate as hostile to their agenda due to unionization and “anticorporate” sentiment.⁹⁶ By the time Flint even experienced urban renewal, it was on a consistent infrastructural decline. Even when urban renewal projects were proposed, White communities were given access to them first. And when Black communities could access them, it was when money was running dry.⁹⁷ Austerity policies, policies designed to reduce government spending, became commonplace.⁹⁸ These policies also had ill-fated consequences for Black Americans in Flint. In efforts to reduce spending, necessary public health and social services were reduced as well. This is a theme that will arise during the Flint Water Crisis.⁹⁹

3. Socioeconomic Public Health Consequences

De facto and de jure segregation and compromised infrastructural integrity ultimately led to reduced access to desirable social determinants of health in Flint, Michigan. Social determinants of health are factors that impact health outside of clinical settings.¹⁰⁰ This includes factors such as housing.¹⁰¹ Housing instability was commonplace in Flint. The influx of Black Americans into the rental market, combined with the Flint government’s delay in providing public housing, caused overcrowding, sanitation issues, and community deterioration. By the 1960s, 96% of Flint’s residents were Black and 28% of the homes in Floral Park were deteriorating. However, St. John was in much worse condition. Poverty was rampant, housing was dilapidated, and there was a vast vermin population.¹⁰² In Flint, most homes where Black Americans lived had faulty wiring, leaking roofs, and other hazards.¹⁰³ Their broader neighborhoods were grimly plagued with air pollution from factories, leading to high incidence of cancer.¹⁰⁴ Ailene Butler, a Flint resident, throat cancer survivor, and a widow due to her husband dying of the same disease, gave a devastating testimonial: “there is a heavy smog caused by the Buick factory which has been in existence for about eighteen years . . . The houses in this district are eaten up by a very heavy deposit, something like rust . . . You can imagine what we go through down there breathing when this exists on just material things.”¹⁰⁵

There were also major economic challenges that hindered access to desirable social determinants of health. Downtown retailers refused to hire Black Americans as salespeople, and General Motors refused to hire Black Americans in executive or management positions.¹⁰⁶ They were only allowed to work for their organization in the foundry, a metal casting facility, or as janitors.¹⁰⁷ Not only did this create severe economic disparities and challenges in upward mobility but also extremely toxic working conditions. Working in foundries can lead to heightened risk of respiratory disease, cancer, anxiety, kidney disease, and neurological challenges.¹⁰⁸ Well into the 1980s, unfair mortgage practices depleted the financial stability of most Black Flint residents, providing less resources to purchase basic necessities.¹⁰⁹ Long-term formal and informal school segregation and school programing that discouraged Black Americans from pursuing college exacerbated these dynamics.¹¹⁰ Even though civil rights legislation did help address some of these challenges, the damage was done. By 1990, Flint had an unemployment rate of 18.3% that starkly contrasted with the national average of 5.6%.¹¹¹ Their income per capita was $10,415 and the cumulative poverty rate was 30.8%. The poverty rate for Black Americans in Flint was 36.4%, nearly double the rate for White Americans.¹¹²

Deliberate pollution of these communities persisted well after the Civil Rights Era. In 1992, the Genesee Power Station opened. It was an $80 million power plant that Flint leaders hoped would provide jobs for the economically volatile city.¹¹³ However, Michigan government leadership and representatives from the Department of Environmental Quality refused to block its construction because of its economic value.¹¹⁴ The end result was lead-based toxins being released into the community. Activists and community organizers rallied against the plant’s construction.¹¹⁵ In 2011, Genesee County was one of the lowest ranking counties for health in Michigan.¹¹⁶

The poor property values, mismanagement of funds by city leaders, and neglect — factors that all contributed to Flint’s public health vulnerabilities — provided the perfect conditions for this disaster.¹¹⁷ Flint’s history of racial inequities culminated with the event that pushed Flint, Michigan into mainstream equity discourse: the Flint Water Crisis. The Flint Water Crisis was set in motion in 2014, when the Flint local government officials changed the city’s water source from Lake Huron’s water, which was treated by the Detroit Water and Sewerage Department, to the Flint River’s water, as a cost-saving effort.¹¹⁸ Lead-poisoned water was introduced into the entire Flint community, launching a massive public health crisis. Almost immediately after the water source was changed, residents of Flint began to complain about the quality of the water—expressing concern that the water was brown, smelled badly, and tasted poorly—but these complaints were largely ignored.¹¹⁹ Unfortunately, use and consumption of the tainted water has saddled Flint with grave public health outcomes. Many residents were poisoned by the lead or exposed to other harmful chemicals.¹²⁰ Residents experienced chemically induced hypertension, Legionnaires disease outbreaks, autoimmune disorders, asthma, PTSD, and many other illnesses.¹²¹

4. The Limits of Insurance Reform in Flint

Flint probably needed from some form of insurance reform and likely benefited from the ACA. If there had been a universal coverage policy during the Civil Rights Era, many residents would have been able to afford healthcare services. Or – utilizing a modern example – when Michigan opted into Medicaid Expansion, most of Flint’s residents would have been covered under Medicaid Expansion and the health exchanges.¹²² The community would have had more research on health disparities available to them due to the research and minority health emphasis provisions in the ACA.¹²³ Racially marginalized individuals would have received coverage and experienced the benefits of the closing insurance coverage gaps all over the United States.¹²⁴ These are all good things – and things they technically had access to as a result of the ACA. However, a sole focus on insurance reform left Flint, Michigan – and plausibly other communities like them – extremely vulnerable because it did not address the impact of structural racism.

Flint had poor infrastructure that was aggravated by racial inequality. As was addressed above, segregation persisted for much of the city’s existence. Black Americans lived in slums or lower-middle-class suburbs at best. Their communities could not access the environmental benefits of White communities. In contrast, they struggled with a myriad of poor determinants of health including air pollution, adequate housing, and safe neighborhoods.¹²⁵ These differences even persisted after the formal abolishing of Jim Crow Segregation.¹²⁶ By the time the Flint Water Crisis arrived, it was equal parts a result of immediate neglect of Flint residents, consequences of historical segregation, and systematic divestment of the city. Health disparities, racism, and inequality in infrastructure were already present due to Flint’s history of segregation and immediate practices of neglecting Black American communities. The neglect and invisibility of these communities allowed for their state and local government leaders to quietly justify connecting this city’s water supply to dangerous, tainted river water. The Flint Water Crisis is not exceptional. There are multiple examples of environmental tragedies in neglected marginalized communities that not only involve lead poisoning, but also natural disaster relief, pollution, and decreased health access.¹²⁷

By the time that Flint received attention towards their infrastructure, it was too late. The residents of Flint received a $626.25 million settlement with funds allocated for fortification of the educational system to deal with the neurological impacts of lead poisoning.¹²⁸ The settlement also came during another brutal health crisis, the COVID-19 pandemic. By the 2020 summer peaks of the pandemic, 56% of Genesee County’s cases came from Flint alone, and 46.2% of their cases by July 2020.¹²⁹ The medical consequences of lead poisoning, like heart disease, stroke, and lead-induced hypertension, were all comorbidities of COVID-19.¹³⁰ Addressing infrastructure was the correct approach, but it simply did not happen in time for them to reap the benefits during the COVID-19 pandemic.

Flint also lacked other critical parts of public health infrastructure, like grocery stores. Food insecurity is a social determinant of health.¹³¹ It is usually addressed by improving access to grocery stores with healthy food options.¹³² And yet, Flint is a city with reduced access to grocery stores. Dr. Mona Hanna-Attisha, the primary whistleblower during the Flint Water Crisis stated that Flint has “no grocery stores.”¹³³ Analyses found that Flint residents had much lower access to fresh fruits and vegetables compared to neighboring counties.¹³⁴ Environmental stressors that were exacerbated by systemic racism also add to the unhealthy conditions in this community.¹³⁵

Insurance reform did do some work to mitigate these disparities, but it did not go far enough. For example, the ACA specifically provides opportunities to learn about these challenges through the disparities research provisions.¹³⁶ It includes multiple sections that allow for data collection and analysis of health disparities, address maternal and infant health, and improve healthcare quality for minority populations.¹³⁷ It also expands and provides additional funding for the role of the Office of Minority Health.¹³⁸ However, it does not necessarily provide specific action items for change. The ACA does not acknowledge the impact of structural racism on disparities. It also does not address the long-lasting consequences on a lack of health resources, behaviors, and opportunities. All these factors contribute to health outcomes and resilience within communities in profound ways.

Beyond Flint, expanding insurance coverage does not remedy structural health disparities like these. Scholarship has shown that disproportionately Black and Brown communities are less likely to have access to healthy grocery stores—the exact case in Flint.¹³⁹ It is also worth noting that racially marginalized communities are less likely to have healthcare facilities where they live.¹⁴⁰ Even when coverage is available, many communities may not have healthcare facilities to use them. Though valuable, insurance reform and the opportunity for Medicaid expansion did not remedy some of the most salient challenges in Flint, Michigan.

III. From Insurance Reform to Structural Reform

As we look beyond insurance reform, the most important takeaway is the relationship between these two studies. Together they demonstrate the domino effect of structural forces on health outcomes. The studies highlight that though poor community health can appear to exist in stasis, a major crisis can demolish an entire community. That crisis, additionally, usually demolishes Black and Brown communities. Every city does not have the exact same history as Flint. But most have similar stories of using the law to create poor public health conditions where racial minorities live.¹⁴¹ Insurance reform may be a palatable and long-standing policy initiative, but it misses the structural issues that greatly determine health outcomes.

This Part calls for health policy initiatives that target structural racism as a more effective way to close health disparities. It starts by highlighting the ways that a focus on structure, space, and place can help policymakers, advocates, and scholars to achieve better health equity outcomes. This Part then suggests three proposals for future reform. First, it proposes a more efficient use of the ACA to target the byproducts of structural racism. Second, it calls for standardized public health data collection that can account for structural racism. Lastly, it calls for greater investment in infrastructure.

A. Structure, Space, and Place

Shifting from insurance reform towards a structural approach requires an examination of space and place’s role on health. Social determinants discourse has engaged with these ideas for a long time, but some scholars have called for social determinants to also bring structural racism to its forefront.¹⁴² It is one thing to address poverty, but addressing why the poverty exists is also critical. Additionally, shifting away from insurance reform towards a structural approach also requires health policy that sits with the long-lasting consequences of explicit, legal discrimination. Lawmakers, at minimum, must contend with the consequences of discriminatory policies. Discriminatory housing policies, blatant divestment from nonwhite neighborhoods, and other shameful practices have lingered. That lingering effect produces poor health outcomes. Approaching health law and policy without engaging with these consequences produces at minimum ineffective policy, and at maximum misguided policies. The next step of health reform should step outside of the healthcare facility and away from the traditional norms of whiteness. Rather, it has to center the structural forces that can hamper health resilience and infrastructure.

1. Structure

Though the ACA does provide funding to research health disparities, it does not necessarily address the role that structural racism has played in establishing health disparities. Legal scholars have consistently argued that anti-Blackness and the social capital of Whiteness can have effects on the resources available to various communities. For example, in Bernadette Atuahene’s Predatory Cities , she describes how this dynamic impacted the practicality of integration.¹⁴³ Even when Black families tried to move into White communities with more resources, White Americans would engage in White flight and “tak[e] their . . . social capital with them.”¹⁴⁴ In Dorothy Brown’s book, The Whiteness of Wealth: How the Tax System Impoverishes Black Americans , Brown demonstrates that Whiteness brings social capital to communities and White flight removes it.¹⁴⁵ Examining real estate data, she finds that property values and resources increase as White Americans move into communities and decrease as White Americans leave communities.¹⁴⁶ Additionally, in Whom the State Kills by Scott Phillips and Justin Marceau and its response Race as a Semi-Measurable Component of Social Status by Michael L. Radelet, both sets of authors address how one’s ability to avoid capital punishment aligns with one’s race as a mechanism of social capital.¹⁴⁷ Though these works address property, tax, and criminal law, the theme of the Whiteness and social capital is consistent in health law and policy. What we see in my empirical study is an affirmation of the theories addressed above. There is something about the Whiteness of space and place that can drive health disparities. This can happen in several ways—White flight, open animosity towards racial groups, or forcing marginalized communities into separate spaces. Regardless of the method, as white Americans begin to inhabit a community, the propensity for mortality starts to fall. This disparity in mortality is intensely connected to social capital.

The upshot is that in contrast to explicit forms of racism, structural racism introduces a unique set of challenges that traditional or politically salient methods have not been able to reach. One feature of structural racism is its latent nature. Rather than staring society in the face, it bubbles under the surface. For example, it is easy to understand from a historical standpoint that Black individuals experienced discrimination. That discrimination was implemented through multiple forces: individual actors through domestic terrorism and exclusion, stereotypes promoted by those individuals and social forces, governments through exclusion from the democratic process, reduction in healthcare access through healthcare and provider discrimination, and many other devices.¹⁴⁸ The overtly discriminatory laws were then repealed, but it still left behind subtle effects.

Three dynamics are usually taken for granted in the post-repeal, policy making process—the repeal method’s privileging of overt racism and discrimination, a shift towards concern for economic opportunity, and reduced attention to the lingering effects of the racist and discriminatory laws themselves. The Civil Rights Era’s legislation focused on blatantly racist actions such as hate speech and discrimination, thus equipping the law to enforce accountability on racism that is easily seen.¹⁴⁹ The focus on economic opportunity, though valuable and reflective of many civil rights activists’ goals, created a path for economic-parity policies to be perceived as congruent with racial equity policy. Given these dynamics, it could reasonably follow that the way to attack health inequity was to focus on economic solutions. It could achieve multiple goals – anti-discrimination would be folded into the ACA due to the Civil Rights Act and the Medicare and Medicaid statutes, it would make healthcare affordable, and would provide a policy solution that would give all Americans a chance for financial freedom.¹⁵⁰ But in practice, this approach has substantial gaps because it ignored the latent nature of structural racism. Insurance reform, though it promised to address some aspects of health equity through education and research, was not equipped to engage with more complex forces. This latent effect impacted lawmakers’ abilities to make effective policy and contributes to health disparities.

2. Space and Place

The lingering effects of these discriminatory laws manifested as unsafe neighborhoods, inadequate public works systems, and reduced access to care.¹⁵¹ Scholars at the intersection of health law and race and the law highlighted this dynamic well before the ACA was enacted. Vernellia Randall, a trailblazing scholar in this field, expressed concern about health policy’s neglect of race.¹⁵² She critiqued the Clinton Administration’s Health Care Reform proposal for ignoring the nuances of racial inequity.¹⁵³ She argued that healthcare reform must address racial and ethnic health issues to be effective, and that these issues are unique.¹⁵⁴ Flattening the plane of racial health disparities creates a faulty ethical premise for policy making.¹⁵⁵ Randall later argues that racism has hampered public health preparedness. She asserts that best practices for building racially equitable policy require asking, “1) Is the community basically healthy?; 2) Does the community have access to necessary information, resources and services?; and 3) Are the information, resources and services available and provided to the community in a nondiscriminatory manner?”¹⁵⁶ Without these inquiries, even the best policies would meet their limits.¹⁵⁷

Another scholar, Dayna Bowen Matthew, expressed similar concerns. For example, in Matthew’s Just Health , she furthers scholarship on the impact of health behaviors on health and why individualistic approaches are ineffectual in creating health equity.¹⁵⁸ Health behaviors are responsible for 30% of health outcomes and social determinants of health are responsible for 40% of health outcomes.¹⁵⁹ She argues that social determinants of health are intertwined with the United States’ historical relationship with legalized dehumanization, inequality, and unequal protection of racially marginalized individuals.¹⁶⁰ This history and the behaviors that perpetuate inequity encourage health disparities to fester by upholding structural racism.¹⁶¹ She also asserts that the public health lens is the most effective lens to address health equity.¹⁶² Matthew specifically looks at residential segregation as an example. Pulling from the work of activists and public health scholars, Matthews highlights how racism has created disparate conditions for nonWhite neighborhoods. She also looks to empirical analyses to show where much of health is determined by space and place.¹⁶³

This Article tests some of the ideas of structural scholars and highlights the strengths of their arguments. Insurance reform is a powerful tool. It was effective in many ways and started to bring the United States on par with other peer nations’ universal coverage programs.¹⁶⁴ Scholars such as Matthew argue for a clinically based approach that encourages providers to take a more active role in dismantling structural racism and legal approaches that fully enforce the anti-discrimination principles in the Constitution.¹⁶⁵ These approaches are important, but this Article makes slightly different arguments. This Article posits that insurance reform’s potential was limited because of how it approached and attacked racial health equity. Insurance reform sought to close health disparities by first providing coverage to most Americans—solving the issue of access.¹⁶⁶ Additionally, it focused on the financial benefits of affordable care with hopes of freeing individuals from poverty.¹⁶⁷ Lastly, it provided research dollars to help institutions understand health inequities.¹⁶⁸ This approach was well founded and necessary, but also slightly misguided and one-sided. It ignores structural racism’s impact on public health. Overlooking structural racism left wide gaps in general public health and limited the reach of the ACA.

These gaps were present because the American health reform agenda assumes the natural affairs of Whiteness—clean environment, opportunity social mobility, greater proximity to healthcare facilities, safer homes and neighborhoods—as the backdrop for social policy needs. For example, in 2008, 72% of Americans were dissatisfied with the availability of affordable healthcare.¹⁶⁹ This made healthcare a major election issue, regardless of racial composition. The most prevalent avenue for affordable care was to provide insurance.¹⁷⁰ There were impoverished White Americans who needed coverage, as well as racial minorities.¹⁷¹ So by providing insurance—a financial and cost-saving benefit—individuals would be able to receive the care they need and improve their health at the same time.¹⁷² But this approach assumes that you can access a healthcare facility, that a facility is present at all, that the environmental factors present where you live are conducive to improved health, and that increased individual finances would buy someone the health they needed. These factors only hold if you have the privilege of being White and living in a predominately White community.

The world in which insurance reform is king assumes the majority perspective. And this is not an illogical perspective, given that many health reforms are more responsive to White voters than minority voters.¹⁷³ However, to address issues of racial health disparities, policies must not assume privilege.¹⁷⁴ To look beyond the White gaze, we should assume that if a community is of color that they are living a fundamentally different existence. That different existence affects their health and impacts the effectiveness of public health policies on their lives. Addressing those inequities requires engaging with a structural perspective on health law and policy.

Much of the political and social rhetoric surrounding the health of Black Americans invites in claims of individualism. The idea that Black Americans are not doing enough to move into better neighborhoods, take control of their health, or make more money is often present.¹⁷⁵ We are seeing the impact of systems playing out their purpose.¹⁷⁶ Though many of these acts were made with nefarious intent, it is much more concerning to see their impact while essentially on autopilot in a “post-racial” society. Invoking racially neutral policy does not remedy the impact of overtly (or implicitly) racist policy. Rather, we must disrupt the impact of historical policies and reframe them to make all our communities safer and more resilient. We could have been more immediate in addressing these issues. We also could have had better foresight regarding how dysfunctional the public health infrastructure is in the United States due to the legacy of racism. Our failure to comprehend the devastating impact of racist laws had deadly consequences. The following section will address how we can move beyond insurance discourse and target health equity through law and policy.

B. Proposals for Future Reform

1. Maximize the Potential of the Affordable Care Act

Ironically, in moving away from a perspective that relies solely on insurance reform, the result could be a more effectual use of the ACA. Many COVID-19 policies were executed through the authority in the ACA.¹⁷⁷ Though these policies were conceptualized during one of the most catastrophic global health crises in history, the flexibility lawmakers afforded the ACA gives insight into what can be done within health law.¹⁷⁸

Currently, there are health equity goals folded into the Act.¹⁷⁹ Looking towards the structural causes of health disparities can help us identify deeper impacts of social determinants of health. Access to care is helpful, but if hospitals refuse to do businesses in Black communities, what does access achieve?¹⁸⁰ Structural approaches do not only identify what the gaps in policymaking are, but can identify how they directly relate to health outcomes and healthy communities.

Shifting away from insurance reform can also promote a more effective use of funds allocated by the ACA. The ACA provides increased funding for the Office of Minority Health and research funds for social determinants research.¹⁸¹ Though not explicitly stated in the text of the ACA, it would follow that as more information is acquired, more steps can be taken to further these ideas. In a more conservative approach, de-centering insurance reform can add depth and dimension to social determinants research. It would allow for health initiatives under the ACA to engage with the root causes of many of these issues. In a more expanded approach, de-centering insurance reform would help us identify additional areas for funding and support. Given that there has been significant progress in closing the coverage gaps between White Americans and Black Americans, some of those resources and manpower could be allocated towards improving the infrastructure in racially marginalized communities.¹⁸² Both approaches would improve the impact of the ACA in practice. An infrastructural approach would start to highlight the areas of health policy that are not touched by insurance reform so that the law can address those specific challenges. It would also further the effectiveness of such a major health law victory long after its passage by keeping the law aligned with individuals’ current needs.

Also, we could more accurately and efficiently further the research goals of the ACA. This could happen in multiple ways. Calling back to the Flint case study, legislators could increase the ACA funding allocated to the Office of Minority Health to develop large scale planning to address housing instability resulting from historical and current segregation in Flint. One could also use the allocated funds to examine the impact of housing segregation and economic instability for Black Americans. Going further than the current provisions of the ACA, one could allocate funds for not only researching social determinants of health, but also fixing them. For Flint, that would include expanded planning and potential allocation of grants to address the challenges discussed above. For other communities, that would align with their specific needs.

As I mentioned above, the ACA mandates data collection on health disparities. Fully executing this mandate should involve connecting the long-term impact of racist policies with the public health outcomes of today. A core facet of social determinants of health foundation in the American context is the impact of racism on marginalized communities.¹⁸³ Racism can cause many public health challenges from reduced access to quality health facilities to deteriorating infrastructure.¹⁸⁴ Broadening our approach does more than educate lawmakers about the impact of social determinants. It acknowledges the consequences of years of explicitly racist policies in the United States. The dehumanization, disenfranchisement, and disregard for Black Americans created long term consequences for them and their communities alike.¹⁸⁵ These instances of de jure and de facto structural racism reduce access to desirable social determinants of health and safe infrastructure. Engaging with health law theories within the current context is helpful, but it fails to engage with why we are in this situation in the first place. These inequities exist because of previous unjust laws. Those consequences have a ripple effect on the public health challenges of today. By only examining challenges like a lack of insurance coverage, we miss opportunities for fruitful interventions that address the root of health injustice.

2. Increase Public Health Surveillance Policies

Another approach that can take us beyond insurance reform to a structurally-oriented approach would be to increase health surveillance policies. Case surveillance is the CDC’s main mechanism for data reporting. It is a multi-level process that falls under two categories—reportable diseases and conditions and notifiable diseases and conditions.¹⁸⁶ Reportable diseases and conditions are determined by the states and United States territories.¹⁸⁷ Healthcare professionals, laboratories, and public health professionals report these illnesses to their respective public health departments.¹⁸⁸ The diseases that fall within this category can change each year.¹⁸⁹ Notifiable Diseases and Conditions are determined by The Council of State and Territorial Epidemiologists, in conjunction with the CDC.¹⁹⁰ There are about 120 diseases and conditions on this list.¹⁹¹ However, states voluntarily inform the CDC when a person meets the qualifications for a disease on this list.¹⁹² During a public health emergency, the Public Health Services Act allows for the CDC to waive some procedures needed to request information from the states.¹⁹³

There is not much legal scholarship on the relationships that the states have with the CDC and data collection. Samantha Bent Weber et. Al, in their article Examining Sociodemographic Data Reporting Requirements in State Disease Surveillance Systems , argue that the United States has significant gaps in their socioeconomic public health data collection.¹⁹⁴ Historically, between 30% and 51% of reported data by states on notifiable diseases has lacked information on race and ethnicity.¹⁹⁵ They also found that states are greatly varied in their statutes and regulations regarding the reporting of race, ethnicity, and gender.¹⁹⁶ They also emphasize that the law is the primary gateway for data collection.¹⁹⁷ Kristen Underhill & Olatunde C. A. Johnson argued that the CDC has the power to encourage states to report more of their data, more often in their article, Vaccination Equity by Design .¹⁹⁸ They examine the impact that inadequate health data collection has had on vaccination data by race.¹⁹⁹ They argue that the CDC can encourage states to report data by race by requesting this data more often.²⁰⁰ They also state that Congress should authorize the CDC to require the states to report by race or neighborhood.²⁰¹

Though these scholars approach this issue through the lens of socioeconomic status, equity, and race, their sentiments also apply to notifiable diseases and conditions. We know that marginalized individuals are more likely to be exposed to conditions that promote diseases and bad health.²⁰² We also know that the COVID-19 pandemic has demonstrated how much work needs to be done within the area of data collection.²⁰³ With all of this in mind, states should be required to report notifiable diseases. They should additionally be required to report this data by race, ethnicity, and gender identity. The lack of complete data from the states hinders the United States from having a complete picture of inequity and the impact of systemic racism. It also cripples our ability to know what programs are working effectively.

Building upon Johnson and Underhill’s arguments, one way to achieve better data collection of lead exposure would be to provide counties with the resources needed to track it. Congress also can allocate funding to train state leaders to collect data and send it to the CDC efficiently. This would include providing manpower, expertise, and research funding. Another solution would be to mandate states to submit data on lead to the CDC. A current example of policy that addresses these challenges is the Bipartisan Infrastructure Investment and Jobs Act. This law addresses multiple avenues for health disparities from mitigating environmental toxins to fortifying systems for clean water distribution.²⁰⁴ It is critical that we use these avenues to inform ourselves of the injustices around us, rather than continuing practices that led to a loss of life. These are investments that can provide completely different circumstances for marginalized communities.

3. Investing in Equitable Infrastructure

The United States has very outdated infrastructure. In 2021, the American Society of Civil Engineers (ASCE) graded the United States’ infrastructure by assessing infrastructural capacity, condition, funding, costs, maintenance and operation, public safety, resilience, and innovation.²⁰⁵ The United States received a C-, an improvement from 2017’s D+.²⁰⁶ Though the ASCE rates the United States overall, racial minorities live in communities that had worse infrastructure than their White counterparts.²⁰⁷ Black Americans are more likely to live in communities with poor infrastructure. For example, it was commonplace during the 1950s and 1960s to purposefully build highways by demolishing Black neighborhoods.²⁰⁸ For those who stayed in these newly razed neighborhoods, major transportation sources were disrupted or destroyed.²⁰⁹ These practices also created mass economic loss, displacement, and environmental pollution.²¹⁰ Today, Black Americans and other individuals of color are also more likely to live in communities with high levels of lead exposure.²¹¹ Predominately black neighborhoods are more likely to be situated near the most environmentally polluted areas, whether that is due to historical factors or corporate financial gain.²¹² They are also more likely to be located near areas prone to natural disasters, such as flooding.²¹³ The broader goals of this displacement was to effectively segregate White and Black communities and to protect White cultural norms.²¹⁴ Additionally, racially marginalized communities frequently experience White flight and divestment. The phenomenon of White individuals leaving in droves when minorities move in into their neighborhoods and urban renewal leaving the newly minority communities without resources for reinvestment was not unique to Flint, Michigan. It is a national phenomenon. Where minorities go, White individuals tend to leave and take their social capital with them.²¹⁵

There are also infrastructural shortcomings in public health infrastructure. Racial minorities experience much longer commutes to medical facilities compared to predominately White communities.²¹⁶ This holds true in both urban and rural areas.²¹⁷ There are also large disparities in access to physicians in predominately minority communities.²¹⁸ Hospital relocations or closures are extremely prevalent where Black individuals live.²¹⁹ Private hospitals can desire a more affluent patient base, prompting relocation, while public hospitals struggled to survive on local government budgets.²²⁰ All of these factors left majority-minority communities without accessible healthcare. Even during the COVID-19 pandemic, racial minorities had less access to testing and vaccination sites.²²¹ The formulas used to allocate COVID-19 relief funds provided by the federal government were biased towards predominately White communities, allowing for Black communities to receive less of the critically necessary resources needed to weather the pandemic.²²²

All these factors contribute to optimal public health outcomes and health equity in general. They touch public health in direct ways, like access to healthcare facilities, and in indirect ways, like decreased likelihood for developing asthma. But infrastructure absolutely contributes to health outcomes. Therefore, one of the most important areas for health law to turn towards is infrastructure law and policy. Infrastructure has recently arisen in the public consciousness as a serious policy issue as issue as scholars and constituents reflected on healthcare infrastructure failures during the COVID-19 pandemic.²²³ Some of this pressure prompted Joe Biden to make infrastructure a core part of his campaign promises and presidential agenda.²²⁴ On November 15, 2021, President Joe Biden signed the Bipartisan Infrastructure Bill into law, with over $1 trillion allocated for infrastructure projects across the United States.²²⁵ He also signed Executive Order 13985, Executive Order on Further Advancing Racial Equity and Support for Underserved Communities Through The Federal Government, stating that an additional goal of the infrastructure bill was not only to fortify American infrastructure, but also to remedy the role of infrastructure as a segregating force in marginalized communities.²²⁶ States should utilize these funds to bolster public health initiatives that pertain to infrastructure. Fortifying permanent public health supports, education initiatives, disaster preparedness, and environmental justice initiatives are just some of the opportunities for utilizing the funds to promote health infrastructure.

We should not become complacent with the passage of The Bipartisan Infrastructure Act. There are two potential avenues for challenges. First, distribution of funds from the infrastructure bill are largely left to the states. Some of the funds do have specific purposes, such as for bridges or roads.²²⁷ But the specific use of the funds can vary from state to state. Funds are helpful. But if they are allocated to predominately White or affluent communities first, communities of color will not reap the full benefit of the Act. Second, health and public health policy are extremely divisive issues. Connecting infrastructure and health is scientifically accurate. However, the fraught nature of health initiatives that developed after the Obama Administration, combined with America’s cultural history of rejecting social welfare in the name of anti-Blackness, could make it difficult to develop racially equitable projects. It will be critical that state governments monitor the use of these funds and that the federal government hold state governments accountable to fair distribution of resources. Processes that are developed to help determine where the funds will go need to be equitable and subject to oversight from experts trained in looking for bias. Additionally, removing racial stereotypes – such as laziness and undeservedness – from the political narratives used to publicize these projects will be critical.²²⁸ White resentment is a powerful political tool, and it is effective at galvanizing some political bases. However, White resentment would hinder the racial equity goals of the Bipartisan Infrastructure Bill and take away infrastructure opportunities from the country.

C. Benefits

One benefit of looking towards structural approaches rather than solely focusing on insurance reform is that it is an evidence-informed policy approach. One of the strengths of the ACA was that it was not only informed by the policy preferences of citizens, but also by evidence. Researchers had long documented the consequences of expensive healthcare and how it negatively impacts individuals’ health and financial stability.²²⁹ However, the role of structural forces in health promotion has also been long documented in both academic and activist spaces. W.E.B. Du Bois documented health disparities between White individuals and Black individuals.²³⁰ Martin Luther King, Jr. also highlighted how unjust structures contributed to poor health outcomes.²³¹ Though some policymakers engage with discourse on structural racism as a recent facet of the public health field, it is not new. And yet, it has not been treated as a viable baseline for policy analysis and lawmaking. Multiple qualitative and quantitative studies have found that structural racism weathers individual health, reduces quality of life, and promotes illness.²³² If the goal is to be in alignment with empirical evidence and to produce policy that acknowledges this evidence, a structural approach is necessary.

Another benefit of this proposal is that it can rebrand the American health policy landscape as a forward-thinking institution. The United States’ health policy has been marked with several negative monikers. It has been labeled as one of the most expensive nations to receive care within, one of the most dangerous nations to give birth in, apathetic to its citizens’ public health needs, and generally behind the ball in health policy.²³³ The responsive, rather than proactive, nature of American health policymaking is a contributing factor to this reputation. Additionally, legislative gridlock and hostility around public health issues have also pushed this narrative. Passing the ACA was a feat, and it was an important checkpoint for health policy innovation. But that was over decade ago – with a global pandemic that took millions of lives in-between. Utilizing a structural approach can help mitigate this harsh moniker. It is an approach that engages with the reality of many individuals in the United States, thus grounding it in the needs of its citizens. It will provide opportunities for innovation and creativity – a quality that United States has long claimed as its own. It can also prepare the public health landscape for structural issues on the horizon, such as climate change and toxic environments – both of which disproportionately impact minorities.²³⁴ Shifting away from insurance reform and to a more racially and historically inclusive approach can mark American health policy as ready for the future.

A final benefit of this approach is that it will boost the health of America as a whole. White Americans are the majority, but they only make up about 75% of the population.²³⁵ The other 25% account for racial minorities. Twenty-five percent of the population is not a small number. Millions of Americans are impacted by structural racism. Their neighborhoods are less safe due to divestment and pollution, and they have less access to care and reduced economic opportunities. Insurance reform did take an important step towards closing health disparities. But to go the rest of the distance, health reform must attack the root of the problem. There is substantial evidence that the most persistent ills in public health are structural. Addressing structural concerns will improve the health of racial minorities, thus closing the gap between the 75% and the 25%.

IV. Additional Questions & Concerns

Though there are many societal benefits in shifting towards a structural approach for future health reform, it is not without its concerns. This Part aims to engage with those questions and concerns. This Part first addresses whether insurance reform was intended to produce health equity. Then it addresses whether the ACA specifically should be faulted with the persistence of health disparities. Lastly, it will engage with concerns around legislative gridlock and the unpalatable nature of health reform.

A. Is Insurance Reform Really About Equity?

Some could argue that insurance reform has a separate agenda than equity work. Insurance reform is concerned about the burden of cost on individuals and the broader economy.²³⁶ It is also concerned about market regulation, the healthcare industry, and employment. Achieving equity has always been within the realm of race and the law, critical race theory, and reproductive justice scholarship. Policymakers are concerned about the health of all Americans, and insurance reform is the best way to reach everyone. It is not designed for concentrated approaches to structural change.

The arguments in this Article disagree with this premise. Rather, I argue that engaging with insurance reform and health equity is essential. Discussing insurance reform in the same space as health equity is warranted because it does do equalizing work. Insurance reform can equalize, precisely because it can provide access to care and alleviate the financial burdens of healthcare. Insurance reform also has healthcare quality provisions that address the care racial minorities receive during diagnoses, care management, and treatment.²³⁷ And though these are good things, financial freedom and more stringent quality provisions may not fully close racial health disparities. Furthermore, these provisions intermingle with consequences of structural racism. Individuals cannot experience the benefits of insurance reform if they cannot access a healthcare facility. They also cannot experience the benefits of reduced costs of care if they are more prone to illness due to dangerous environments. Untangling insurance reform from questions of racial equity is not only against the nature of the policy approach, it is almost impossible.

Furthermore, it is critical to interrogate where even the best policies fall short. The ACA was the most comprehensive health reform in modern United States history. Furthermore, it came from discourse that has saturated health policy scholarship for a long time—reducing the cost of healthcare for individuals and the government, increasing the number of insured, and dissemination of quality healthcare.²³⁸ Without meaningful critiques on the limitations of law and policy, we cannot set a forward-looking agenda. In understanding what insurance reform did not (and potentially cannot) do, we may find clarity for the next steps in major healthcare reform.

B. Why Blame the ACA for Failing to Fix Health Equity?

An additional critique is that the ACA specifically is not responsible for perpetuating health disparities or producing poor health equity policy. The ACA, essentially, did what it could. I certainly concede that the ACA can only do so much. However, I would like to present two points. First, the ACA did present itself as a method for creating racial equity. The original bill references “disparities” 34 times, “discrimination” or “antidiscrimination” 28 times, and “race” or “racial” 33 times.²³⁹ The Act also explicitly expressed the reduction of health disparities as a goal of the legislation, as well as support for programs and agencies that collect data on health disparities.²⁴⁰ Some have posited that, given the spillover effects of the heavily racialized election of Barack Obama, the legislation was rebranded as a neutral, equalizing policy.²⁴¹ But the goals of the legislation, combined with its legislative history, prompt an alternative view. If the ACA addresses racial health equity, then it can be held to that standard.

Second, though the ACA was quite expansive, I worry that the landmark nature of the ACA has limited future advancements in public health and health equity promotion. Though the impact of the ACA was substantial and transformative, it is a major site of political friction. Public opinion on health reform is complacent at best, and extremely charged at worst.²⁴² Public opinion on policies that rectify racial inequity fare worse.²⁴³ Given the landmark nature of insurance reform, the politically charged nature of health policy, and the racialization of social policy in general, policymakers and scholars should be concerned that the political compromise of insurance reform can feel like the safest place for health initiatives to land.²⁴⁴ If the policy managed to pass and shows some longevity, it is possible to believe that health reform is complete. If American health reform does not move forward, we will continue to have a reactive approach to health policy. Additionally, the structural forces that saturate health outcomes will continue to reveal themselves at inopportune times. Insurance reform cannot do it all. The goal of this proposal is to highlight what “all” entails.

C. What Can be Done About Legislative Gridlock?

Lastly, one more criticism of shifting towards a structural approach to health equity is the risk of further legislative gridlock. This is a valid concern. As I stated in the previous subpart, insurance reform was not met with open arms. There are many reasons for this such as racialization of health policy, partisan divides on insurance, and constituent confusion about what the policy was designed to do. The legacy of antagonism surrounding the Act has been carried into the following decades, with potential presidential candidates stating that they will dismantle the policy if they obtain the presidency.²⁴⁵ Racial equity policy has been met with even more hostility than the ACA. Books on race and equity have been banned in many states.²⁴⁶ Politicians have built campaigns and political momentum on banning critical race theory, discourse on racism, and “wokeness.”²⁴⁷ In this current climate, it certainly seems like it is impossible to have a meaningful, national conversation on structural reform.

However, not all the proposals listed in this Article are politically controversial or absolutely require legislative action. The ACA gives the Office of Minority Health and other agencies the authority to research health disparities. Evidence supports the fact that structural racism impacts public health and individual health. Understanding the implications of this research is within the purview of the ACA. The Centers for Disease Control and Prevention and the Department of Health and Human Services have authority to collect public health data. This Article asks for more efficient collection and standardization. Lastly, infrastructure policy has met bipartisan support in the legislature.²⁴⁸

In regard to the aspects of my proposal that specifically target structural racism, the lives of Americans are worth bearing the political friction. This friction can produce political opportunity. The death toll of the COVID-19 pandemic was substantial. Though data shows that Americans do not see the pandemic as the most prevalent issue facing the nation anymore, it did indeed take its toll.²⁴⁹ There is an opportunity to reengage American public opinion by highlighting the stark realities of the COVID- 19 pandemic and how structural racism contributed to those effects through fact-checked mediums. There also may be litigation opportunities for racially marginalized individuals to hold structural institutions accountable for their contribution to illness and death—removing the concern of legislative gridlock. Additionally, there is also opportunity for scholars to study how to frame policies in ways that do not promote racial animus but can successfully produce bipartisan support.²⁵⁰ Lastly, the current situation will be the only situation. Equity scholars have made proposals for change long before it was perceived as feasible.²⁵¹ Our goal should be to be forward thinking, even if it is not embraced during the current moment.

Conclusion

This Article contributes to a conversation about the future of health law and health equity within the United States. Our nation is more than a decade past one of the most monumental pieces of health legislation in its history. To be met with and battered by a major health crisis at the same time warrants a reevaluation of how we approach these challenges. This Article argues that insurance reform is ill-suited to dismantle systemic inequalities in health. Looking beyond insurance reform will allow for us to build upon what is already understood within health law will help our country achieve equity, so that all communities have a fighting chance against the next health crisis. It utilizes a case study of Flint, Michigan and an original empirical study to further those claims.

This Article presents three proposals for future reform. First, it advocates for an updated and more efficient usage of the ACA’s authority to address health disparities. Second, it argues that the United States needs standardized and granular data on health disparities. It also highlights the ways that states can avoid data submission and potentially obscure the nature of health disparities. Lastly, it argues for equitable distribution of funds from the Bipartisan Infrastructure Bill.

A history of segregation and racism has entrenched inequality so deeply in our laws and society that it cannot fully be uprooted by insurance reform alone. However, by looking to pathways outside of insurance reform and healthcare access we can propel collective health into a much better state. This approach will help us utilize our current health law victories more effectively. It will also incorporate a less individualistic perspective of public health and emphasize resilience. Finally, this Article pushes policymakers and advocates to tie health law to the discourse around modern racism—a dynamic that deeply affects health outcomes today.