July 2013 Volume 9 Number 11

Section Chair's Column: How can that be?

By David L. Douglass, Sheppard Mullin, Washington, DC

AuthorIn the final week of its term, the Supreme Court issued three decisions defining the meaning of the Constitutional guarantee of equal protection that also carry implications for health law and policy. In Fisher v. University of Texas, the Court, by a 5-4 majority, reaffirmed the constitutionality of promoting diversity in higher education. Although the Court did not go as far as many of us had hoped, it certainly did not go in the direction that many of us feared. Although I, like so many others, anxiously awaited the decision, I had not until recently appreciated how Fisher is also a health law case.

Dr. William McDade is Associate Professor of Anesthesia and Critical Care and Deputy Provost for Research and Minority Issues at the University of Chicago. At the Section’s Physicians Issues Conference last year, Dr. McDade gave an informative, insightful and compelling presentation on disparities in health conditions and treatment between minorities and non-minorities. I found the presentation personally compelling because based on my own circumstances and experience I had questioned the validity of studies that purported to establish disparities in treatment recommendations made by physicians to white versus African-American patients. I would hear the reports of these studies and ask, “How can that be?” I particularly questioned a study showing that African-American women are less likely to be treated appropriately for breast cancer. My wife is African-American. Would she be at risk of not having a lump properly diagnosed? Would she be given a less aggressive treatment recommendation? We are high income, highly-educated, sophisticated consumers of medical services who have top doctors and live in a city with some of the nation’s leading hospitals. It just could not be, I thought, that she could be on the wrong side of the disparate treatment equation. After Dr. McDade’s presentation I understood not only that she is but why. (Of course, my grandmother would have said, “What are you talking about? You’re still Black.”). And, of course, if my wife, myself and our family are at risk, what does that say for those who do not have our access and advantage?

Dr. McDade returned to our conference this year and discussed how the Supreme Court’s decision in the Fisher case could impact healthcare delivery in minority communities. He explained the relationship between diversity in medical education and improvement in healthcare for minority communities, i.e. the reduction of race-based healthcare disparities, and made a practical, grounded case for how promoting diversity in higher education is inextricably linked to the quality of healthcare provided to minorities. (Of course, the implications for the decision extended far beyond healthcare).

Viewed through Dr. McDade’s lens, Fisher v. University of Texas is a health law case. Just as the Court’s decision in National Federation of Independent Business v. Sebelius, upholding the Patient Protection and Affordable Care Act, will profoundly influence Americans access to healthcare, Fisher v. University of Texas will likely impact the quality of healthcare for minorities. Another Equal Protection case just decided by the Court, its decision in United States v. Windsor, declaring unconstitutional the Defense of Marriage Act, also carries implications for healthcare. Same sex couples married under state law will now have new choices, and new obligations, as they become eligible for federal spousal benefits.

These cases, which most would classify as equal protection cases, underscore the far-reaching transformation in health law we are experiencing. When I was in law school there were few, if any, health law courses. That is changing. And, in fact, a case can be made that health law should be part of every law school’s core curriculum. Understanding the basic legal framework in which healthcare is delivered in this country is now arguably as important as tax or commercial paper.

One of the values of the Health Law Section that I most cherish is the opportunity it provides for education and engagement. The rapid expansion and evolution of health pushes against the trend toward practice specialization and demands that each specialist be a bit of a generalist. Our publications, webinars and live programs keep our members abreast of important issues, developments and trends not only in their own specialties but in related areas, as well. Beyond education, the Section also offers our members an opportunity to engage in the process that will shape health law and policy, through our dialogue, formal and informal, with health law policy makers and thought-leaders, and in addressing important healthcare needs, such as through our Breast Cancer Task Force Advocacy Workshops and, more recently, our support for veterans’ mental health needs. The breadth and depth of expertise our members contribute to the Section, the diversity of our experiences, interests and perspectives and our commitment to fairly and responsibly address our nation’s healthcare needs enable us to occupy the enviable position of being a respected educational source, an influential voice of reason in the dynamic health law and policy debate and a vehicle to increase the quality of healthcare received by our citizens. The Section helps us to make important connections and contributions that might otherwise be missed.

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