Home > Journals > Michigan Law Review > MLR > Volume 123 > Issue 2 (2024)
Abstract
This Article considers how health professionals’ efforts to combat racial health inequities interact with legal restrictions constraining their ability to consider race. In light of the Roberts Court’s recent invalidation of two university admissions programs, intensifying a “colorblind” judicial shift, the collision between antiracist medicine and colorblind law is a pressing concern. This Article anticipates the implications of this collision and explores how health professionals and systems can design programs that survive judicial examination.
In Part I, the Article examines the frameworks that will apply if antiracist medicine faces legal challenges. These include the Equal Protection Clause and federal statutes like Title VI and Section 1981. Part II systematically outlines three reasons why medicine might consider race—the enhancement of individual and population health through beneficent consideration, the mitigation of racial health disparities via egalitarian consideration, and the redress of historical injustices through reparative consideration. Additionally, it identifies five central contexts in which race has been considered: professional training, the professional-patient encounter, allocation of scarce resources, public health, and clinical research.
Part III delves into the critical question of how medicine should respond to courts’ colorblind turn. Because policies classifying patients or professionals by race will be subjected to strict scrutiny, their viability becomes a challenge. In contrast, policies aimed at antiracist goals while avoiding race-based classification will normally pass muster. It also discusses recent legislative, regulatory, and litigation developments questioning the legitimacy of antiracist medical objectives. Understanding the evolving legal landscape is crucial for medicine to effectively address racial health inequities, and this Article seeks to provide precisely that understanding.
Recommended Citation
Govind Persad,
Antiracist Medicine in Colorblind Courts,
123
Mich. L. Rev.
145
(2024).
Available at:
https://repository.law.umich.edu/mlr/vol123/iss2/2
