Health Discrimination

This seminar will focus on discrimination in healthcare settings in the contemporary United States, broadly understood. What is health discrimination understood to be? How, why, and in what terms has it come to be seen as a problem that law must address? What are the terms of recognition of health and healthcare-based discrimination offered in the law, what are the remedies, and what are the terms of disputing them? The course will trace health and healthcare discrimination across all the legal locations in which it occurs and is regulated including Section 1557 of the Affordable Care Act, Title VI and Title VII of the Civil Rights Act of 1964, the Health Insurance Portability and Accountability Act of 1996, Medicare and Medicaid, state health insurance regulators and the Department of Labor, criminal and child abuse reporting, religious and conscience objections to providing care, and hospital-level grievance procedures. We will also look beyond these statutes to the other forms of recognizing harms in health and medical settings that shape the legal environment such as the patient safety movement and medical malpractice.
At this moment, for example, access to gender affirming care for transgender and/or non-binary youth in the U.S. is banned in some states but required to be accessible under federal civil rights laws. We will focus heavily on the current controversy over gender identity discrimination in healthcare but will also cover discrimination on the basis of race, disability, weight, religion, language, health status, drug use, pregnancy, abortion history, and the intersections of these traits. We will take an interdisciplinary approach to the topic of health discrimination that assumes that some of the basic terms — discrimination, algorithmic and artificial intelligence-based discrimination, harm, harassment, gender, disability, safety, health disparity — are themselves contested and ambiguous. We will study litigation, regulations, social movement organizing, health insurance, institutional and political responses to discrimination, and legal doctrines. These topics traverse multiple areas of law, offering an opportunity to take a thematic approach to a set of legal issues rather than a doctrinal or practice area approach. Most of the questions in this area of law remain unresolved and are subject to high levels of controversy, so we will also spend some time understanding the social movement activism and legal reform efforts on the right and the left that frame them in our courts. The course will be of interest to students planning to work in civil rights, healthcare administration or hospital general counsel, personal injury or malpractice, government and regulation, or health benefits. Attendance and active participation will be required.