AMERICAN DISTRUST AND CURRENT BIOETHICAL ISSUES
SLAVERY, SEGREGATION AND RACISM: TRUSTING THE HEALTH CARE SYSTEM AIN'T ALWAYS EASY!
AN AFRICAN AMERICAN PERSPECTIVE ON BIOETHICS
R. Randall , 15 St. Louis U. Pub. L. Rev. 191 -235 (1996)
Just like the rest of America, the African American community is facing
a number of bioethical issues including: abortion, disparate health status,
racial barriers to access to health care, racial disparities in medical
treatment, the Human Genome Project and genetic testing, organ transplantation,
AIDS, physician assisted suicide and right to die, reproductive technology,
and violence. Unlike the dominant American group, African Americans view
these issues through an additional screen of fear and distrust. It is this
fear and distrust that causes us to believe that the principles of bioethics:
autonomy, beneficence, nonmaleficence, and justice, won't protect our community
from mistreatment and abuse.
Abortion is an issue that deeply divides American society. Generally,
the arguments center on right-to-life and pro-choice ideologies. The situation
for African Americans is not that simple. On the one hand, abortion-rights
activity has increased among African Americans. In fact, Black women choose
abortion at twice the rate of their White peers (21 per 1,000 for Whites,
57 per 1,000 for Blacks). (89) On the other hand,
the debate over abortion is too narrow, failing to address issues of prenatal
care, infant-mortality rates, or teen- pregnancy rates. (90)
Furthermore, while many African Americans believe that every woman has
the right to decide about abortion, those same African Americans believe
that abortion is genocide. (91) Some African Americans
believe that this increase represents a form of eugenics: "Black women
do not realize that the people forcing abortion on our people as a panacea
to our social problems have a long history of beliefs in eugenics. They
have a long history of racism." (92) In short, many
African Americans view abortion as "elitist, racist and genocidal."
Thus, a bioethical discussion centered on either right-to-life or pro-choice
principles fails to take into consideration the social problems driving
African Americans to abortions or the fear that abortion is merely another
form of genocide.
B. Disparate Health Status
To African Americans, the continued disparity between the health status
of African Americans and European Americans is significant evidence that
the health care system is not to be trusted.
Wounded, [racism] retreated to more subtle expressions from its most
deeply entrenched bunker . . . [F]orms of sophisticated racism attached
to economic opportunities unfortunately can still be found today. . . .
[N]owhere is that better exemplified than in the rate of excess death among
black Americans. (94)
"Excess death" represents the number of deaths actually observed prior
to the age of seventy years, minus the number of deaths that would be predicted
when age- and sex- specific death rates of the U.S. European American population
are applied to the African American population. (95)
Compared to European Americans' mortality rate, African Americans experience
60,000 excess deaths a year. (96) In particular, African
American women have 53.12% excess deaths, as compared to European American
women. (97) African American women have excess deaths
in every category but suicide. "African- American women had 324.1% more
deaths due to homicides," (98) "163% more deaths due
to diabetes, 77.6% more deaths due to cerebrovascular disorders, 78.4%
more deaths due to cirrhosis of the liver, and 78.4% more deaths due to
heart disease than European-American women." (99)
"African American women have a 178.43% excess maternal rate."
African American men have 52.67% excess death rate over European American
men. (101) African American men had 598.7% more deaths
due to homicides; (102) 100% more deaths due to diabetes;
92.6% more deaths due to cerebral vascular disorders; 88.4% more deaths
from cirrhosis of the liver; and 81.8% more deaths due to pulmonary infectious
disease than European American men. (103)
Children are not immune. For instance, African American infants are
222.81% more likely to suffer from low birth weight and its accompanying
handicaps. (104) 108.14% more African American infants
die than do European American infants. (105) "When
compared to the infant mortality of other nations, African-Americans rank
thirty-second among countries compared to European-Americans' twelfth-place
"The picture that is clearly painted by these health measurements is
one of significant disparity between two races." (107)
Few health problems are more pressing than the persistent excess of morbidity
and early mortality among African Americans. (108)
In fact, if we were to consider Blacks and Whites in the United States
to be different nations, White America ranked twelfth in age- adjusted
mortality rates (near Italy and Australia), whereas Black America ranked
thirty-third (near Romania and Czechoslovakia) in 1991. (109)
Without decent health, it becomes nearly impossible for African Americans
to gain the other attributes--money, education, contacts, industry knowledge--
necessary to gain access to the American economic system. Despite technological
advances, African Americans continue to be sicker than European Americans.
Given this level of disparity, "trusting the health care system ain't always
C. Racial Barriers to Access
Racial barriers to access are a significant problem for African Americans.
These barriers to access have their foundation in the historical relationship
between African Americans and Southern medical institutions. As slaves,
African Americans were perceived as property.
While some slave owners attempted to protect their own economic interests
by providing minimal health care, most left the slaves to live or die as
fate might befall them. (112) After the Civil War,
the Bureau of Refugees, Freedmen and Abandoned Lands ("Freedmen's Bureau")
was instituted to "furnish  supplies and medical services" to the former
slaves. (113) However, the Freedman Bureau had very
limited effect in providing services to former slaves. In fact, the Compromise
of 1877 effectively ended the period of radical reconstruction which had
been an attempt by the nation to make affirmative efforts in helping African
Americans. (114) During the Post-Reconstruction era,
African Americans were excluded from health care by either prohibition
or discrimination: "[Even] where segregation and discrimination [were]
not required by law they became deeply ingrained in the mores. Such behavior
became part of the American Way of Life. . . ." (115)
This "way of life" remained visible until the Civil Rights Movement of
the 1960s. (116) After the 1960s, health care institutions
either fled predominantly African American communities or instituted policies
which resulted in limited access to health care for African Americans.
The continuing racial barriers to access are evidenced in discrimination
that occurs in hospitals, the availability of facilities in the community,
the segregation of facilities, and the limited availability of medical
providers. For instance, many hospitals discriminate by using patient referral
and acceptance practice standards that limit access. (117)
Moreover, increasingly, hospitals that serve the African American community
are either closing, relocating, or becoming private. (118)
This is a particular problem since many of the traditional sources of health
care in the African American community also are vanishing. At one point
there were more than two hundred African American hospitals in the United
States. African Americans relied on these institutions to "heal--and save--their
lives." (119) By 1991, only twelve hospitals continued
"struggling daily just to keep their doors open."
Other evidence of racial barriers limiting access to health care is
manifested in the problem of patient dumping. (121)
An Arican American seeking care at a private hospital faces the possibility
of being "dumped"; that is, the hospital may transfer an "undesirable"
patient to a different facility. (122) Congress passed
the Emergency Medical Treatment and Active Labor Act (EMTALA) to prevent
patient dumping. (123) However, lack of enforcement
of these legislative enactments makes patient dumping an ongoing problem.
Further, hospitals are continuing efforts to find ways of bypassing the
requirements of EMTALA. For instance, by rerouting patients before they
arrive at the hospital, a hospital can avoid EMTALA's requirements. (125)
Consequently, patient dumping continues to be an issue that plagues African
Other evidence of various racial barriers to access is the segregation
that exists in facilities. For instance, nursing homes are the most segregated
publicly licensed health care facilities in the United States. Racial discrimination,
some commentators assert, is the major factor explaining that type of segregation.
While African Americans constitute only twelve percent of the nation's
total population, the African American poverty rate (31%) is three times
greater than the European American poverty rate (10%). (126)
However, African Americans constitute only twenty-nine percent of the Medicaid
population and twenty-three percent of the elderly poor. (127)
More significantly, Medicaid expenditures for African Americans are only
eighteen percent of total expenditures. (128) Only
ten percent of Medicaid intermediate-care patients are African Americans.
The data on the actual numbers of White physicians who have offices
in the African American community is not available. There are probably
very few. Consequently, African American physicians have been an important
aspect of filling the availability gap. Furthermore, despite being twelve
percent of the population, African Americans are seriously underrepresented
in health care professions. (129) Only three percent
of physicians in the United States are African Americans; (130)
only two-and-one-half percent of dentists in the United States are African
Americans; (131) and only a little over three- and-one-half
percent of pharmacists are African Americans. (132)
Racial barriers to access can take two forms. Barriers can be based
on racist conduct that is intentional, or they can be based on conduct
which, although not intentional, nevertheless results in a disproportionate
disparate impact on African Americans. Much of the institutional racism
historically has moved from intentional conduct to unintentional. While
this classification may offer a distinction when assigning fault or culpability,
the classification makes little difference to the African American feeling
the adverse affects of discrimination. This legacy of a racist health care
system persists today in African Americans who are sicker than European
Americans and who continue to experience racial barriers to access. These
continuing racial barriers reinforce African Americans' distrust of the
health care system.
D. Racial Disparities in Medical Treatment
Perhaps the most troubling aspect of institutional racism in the health care
system is the occurrence of racial disparities in the types of services ordered
by physicians and in the provision of the medical treatment itself.
These disparities are well-documented. Despite higher rates of heart disease
in African Americans, European Americans are one-third more likely to undergo
coronary angiography (134) and two to three times
more likely to undergo bypass surgery. (135) Doctors
advise African American women to gain less weight than White women during
pregnancy. This outdated advice ignores the fact that sufficient weight
gain is particularly important for Black women, who are twice as likely
as White women to deliver low-birthweight babies. (136)
Doctors are more likely to dismiss the use of cardiopulmonary resuscitation
(CPR) as a treatment option for African Americans, Asians, and Hispanics,
than for Whites. (137) European Americans are five
to fifteen percent more likely to receive aggressive treatment. (138)
In fact, the most favored patient for long-term hemodialysis is a European
American male between the ages of twenty- five to forty-four. (139)
A European American on dialysis is two-thirds more likely to receive a
kidney transplant than a non-European American. (140)
Middle-income African Americans are less likely to receive a kidney
transplant than middle-income European Americans. Elderly Blacks have greater
difficulty obtaining care than elderly Whites, even though both groups
are covered by the federal Medicare program. Hospitalization and death
rates are higher among elderly African Americans than elderly Whites. (141)
Of Medicare hospitalizations, African Americans are more likely to receive
substandard care than other elderly patients and are more likely to be
discharged while still unstable. (142) When hospitalized
with pneumonia, African Americans were less likely than European Americans
to receive intensive care. (143) This disparity in
medical treatment persists even after controlling for clinical characteristics
and income. (144) African Americans with HIV are
less likely than whites to receive drug therapies used to prevent pneumonia,
a major killer of HIV-infected people. The problem exists without respect
to income, education, or health insurance status. (145)
African Americans receive health care treatment different from the "preferred"
patient, the European American male. Whether this difference is based on
individual prejudices or medical school training, it is evidence of institutional
racism that cannot be tolerated. Any patient seeking care from a physician
should be able to be assured of the most appropriate medical treatment
available. Irrespective of race, each patient should be assured that the
physician will act in the patient's best interest. Every person should
be assured that the physician will not let personal prejudice or medical
prejudice influence the medical treatment. Under the current situation,
an African American does not have those assurances. Is there any wonder
that African Americans do not trust the health care system?
E. Human Genome Project and Genetic Testing
The Human Genome Project is a group of research projects, organized
under the supervision of the federal government, devoted to the long-term
goal of identifying all the genes of the human body. (146)
There are both positive and negative ramifications of the Human Genome
Project. (147) The positive ramifications can be
grouped into those which promote general scientific interest, (148)
and those that advance the diagnosis of disease (149)
and advance disease treatment. (150) The negative
ramifications include the potential for providing a basis for a eugenics
program, (151) problems with invasion of privacy,
and problems with genetic testing. (153) It is generally
agreed that the potential for discrimination is significant and serious.
The discriminatory use of genetic information is particularly relevant
in the context of schools, (154) employers and employees,
(155) and insurers. (156) But
what few acknowledge is that African Americans will be disproportionately
affected by any genetic discrimination. (157)
There are three primary issues facing African Americans. Historically,
European Americans have used genetic information to reinforce negative
stereotypes about African Americans. (158) Second,
given the racial barriers to access and the racial disparity in medical
treatment, the potential benefits of gene mapping will be also be racially
distributed. (159) Third, given the disparate health
status of African Americans, the money being used to support gene mapping
should be used to address the social conditions which contribute to current
health status problems. (160) Developing a technology
such as the Human Genome Project in a racist society would be like developing
a bomb and giving it to a child. The United States has had a long history
of using genetics in attempts to subjugate African Americans. (161)
Yet, as usual, the fears of African Americans are, at best, put on the
back burner and are, at worst, discounted as unreasonable. (162)
F. Managed Care
Insurers, both private and government, are electing to ration health
insurance products that "manage" the patient's care. They do it through
managed care products such as health maintenance organizations ("HMOs"),
preferred provider organizations ("PPOs"), and individual practice associations
("IPAs"). As currently operated, these managed care products may cause
more harm than good to African Americans. It is important to remember that
managed care products have not developed in response to the poor health
status or the lack of access to health care of African Americans, but rather
to third-party payors' and employers' desire to control expenditures. The
primary mechanisms that managed care products use to reduce expenditures
are strict utilization review and financial risk-shifting. These mechanisms
may operate in direct conflict to the goals of improving the health status
of African Americans.
Strict utilization review requires the prospective denial or modification
of health care services. Financial risk-shifting is the mechanism which
ensures that doctors and providers will act as gatekeepers to health care
services. It is assumed that the gatekeeper will continue to order necessary
care and that only "unnecessary" care will be cut. Unfortunately, the definition
of "unnecessary" services will, at best, be based on some statistical norm
of the general population. At worst, it will be based on standards that
are a result of studies on a middle-class, European American, fairly healthy,
Regardless, managed care products will ultimately change the perceptions
and expectations of society, physicians, patients, and third-party payors
regarding what is owed to whom, what treatments are appropriate in what
circumstances, and even what qualifies as a disease. (163)
These altered perceptions may be contrary to the needs of African Americans
and, without safeguards, could work to worsen the existing disparity in
health status between European Americans and African Americans.
Quality assurance, utilization review, and practice parameters are essentially
designed around data based on middle-class populations who generally have
had "good," if not excellent, access to health care services.
African Americans have definitely not had excellent access to health care
services. (165) That lack of access coupled with
other issues affecting African Americans--racism, homelessness, violence,
drugs, etc.--means that they will come into managed care products with
poorer health status and needing more, not less, health care services.
In a system focused on decreasing utilization, it seems difficult to imagine
that African Americans will receive "more" health care services, while
others receive " less." If managed care products do not provide culturally
relevant care, then African Americans may have technical access to health
care, but not quality health care.
Beyond these problems with utilization review and financial risk shifting,
managed care products' continued focus on cost containment may be inherently
antithetical to the needs of African Americans. Just as insurance had a
"perverse influence" on health service delivery, (167)
so shall managed care products. Since third-party payors will make more
when they treat less and spend less on hospitals and providers (infrastructure),
they will, over time, tend to place increasingly stringent requirements
on providers; they will fail to develop more expensive, but culturally
appropriate treatment modalities; and they will refuse or minimize the
expenditures necessary to develop adequate infrastructure for African Americans.
(169) If health providers and health organizations
that serve the underserved population do not insist that the provision
of culturally competent care be a basic component of any managed health
care product, African Americans will not benefit as much as we hope from
this so-called "health care reform." (170) Yet, these
concerns are often ignored or minimized by most bioethicists.
It will not be easy to trust managed care organizations to operate in any
way but a discriminatory way.
G. Organ Transplantation
African Americans have disparate access to organ transplantation. African
Americans wait almost twice as long as European Americans for their first
transplant--13.9 and 7.6 months, respectively. (172)
Although European Americans represent only sixty-one percent of the dialysis
population, they receive seventy-four percent of all kidney transplants.
In 1988, African Americans represented 33.5% of dialysis patients, but
only 22.3% of kidney transplants went to Black patients. (174)
In fact, in any given year, European American dialysis patients have approximately
a seventy-eight percent higher chance of receiving a transplant than African
American dialysis patients.
(175) Most bioethicists
attribute this disparity to African Americans' failure to donate organs.
For instance, in 1988, Blacks donated only twelve percent of living-related
transplants and only eight percent of cadaveric kidneys. (176)
However, this disparity also exists because of the level of mandated antigen
matching required, a level that may be unnecessary for successful transplantation.
Organ transplantation presents two conflicting problems for African
Americans. African Americans do not have equitable access to available
organ transplants as do European Americans. They are on waiting lists almost
twice as long as European Americans, even when such factors as blood type,
age, immunological status, location, and the decreased organ donations
by African Americans are taken into account. (178)
In part, this is due to allocation rules such as "antigen matching rules
which favor European Americans." (179) However, there
are alternative allocation rules that could reduce, if not eliminate, the
racial disparity in access to donated kidneys. (180)
The most common reasons for donor reluctance include: lack of information;
religion; distrust of medical professionals; fear of premature death; a
preference to donate only to members of the same race; and the failure
of health care professionals to ask African American families for consent
in an effective way. (181) The fear of premature
death is fueled by popular shows and community rumors: In a fairly recent
Law and Order telecast, a rich White man bought his daughter a perfect
kidney from the surgeon. The surgeon obtained the organ by taking a medical
team to a park and mugging a preselected victim. The victim was an African
American man. (182) Moreover, a popular story in
the African American community is of a Hispanic man who was found "mugged"
on the streets. When the ambulance took him to the hospital, he was declared
brain dead and his organs were removed before his family was notified.
Thus, popular folklore fuels the fear of African Americans. In fact,
it is not an unreasonable fear. The world's most enduring line of human
cell cultures--used to test the polio vaccine, new drugs, and potential
cancer cures--was taken without informed consent from a Black woman in
Baltimore who was treated for cervical cancer at Johns Hopkins Hospital
in 1951. The cancer killed Henrietta Lacks, but the HeLa cells grown from
her flesh live on in labs throughout the world. (183)
Laws in Pennsylvania, California, Florida, Michigan, Ohio, and Texas allow
the coroner's office to remove eyes and brains from the bodies of the dead
without prior consent or permission from next of kin. (184)
More often than not, African Americans are most affected by this law. (185)
Given the current level of mistreatment based on race, there is no reason
why African Americans should believe that their bodies will not become
a source of organs for European Americans. (186)
H. Reproductive Technology
African American women like most women seek "reproductive choice."
They want the power to make genuine choices about their reproductive health.
(188) However, we tend not to have that choice because
choice involves more than a "right to an abortion"; it involves the real
ability to exercise the choice to have healthy children or not to have
children at all. To have real reproductive choice, African American women,
at a minimum, would need access to reproductive health care, including
prenatal care; access to infertility services; freedom from coerced or
ill-informed consent to sterilization; economic security, which could prevent
possible exploitation of the poor with surrogacy contracts; freedom from
toxins in the workplace; healthy nutrition and living space; and the right
to safe, legal, and affordable abortion services. (189)
1. Reproductive Health--Workplace Toxins
African American women are less healthy than European American women,
due in part to our overrepresentation in jobs that have high levels of
workplace toxins. (190) How to protect the reproductive
health of women is a significant legal issue that will disproportionately
affect African American women. The leading case on the issue, United Automobile
Workers v. Johnson Controls, Inc., does little to help. (191)
Certainly, the decision protects women from forced sterilization in order
to maintain higher paying jobs. However, because the decision does not
address the work conditions which threaten the health and safety of women
and their fetuses, African American women could be rendered infertile simply
by doing their jobs. (192) Reproductive health of
African American women will continue to lag behind European American women
as long employers are allowed to evade their responsibility for maintaining
toxic-free environments. (193)
2. Reproductive Health Care - Infant/Maternal Mortality
The lack of adequate prenatal care has resulted in both high maternal
and infant mortality rates. In 1986, African American women were 3.8 times
more likely than White women to die from pregnancy-related causes. (194)
Nearly one African American baby out of ten is born to a mother who received
late or no prenatal care. Among African American teenage mothers under
age fifteen, the proportion increases to two in ten. (195)
On December 10, 1990, the United States Food and Drug Administration
(FDA) approved for general use in the United States the contraceptive Norplant,
a long-acting drug. (196) The potential abuse of
Norplant is enormous and already apparent. On December 12, 1990, the Philadelphia
Inquirer published an editorial entitled Poverty and Norplant: Can Contraception
Reduce The Underclass? (197) All fifty states have
already incorporated Norplant into their welfare systems, providing either
reimbursement for the cost of Norplant to women on Aid to Families With
Dependent Children or a cash bonus for those women who agreed to be implanted
with the device. (198) A number of high schools considered
offering Norplant to teenage girls in order to prevent teenage pregnancy.
The courts and legislatures have considered conditioning probation on the
acceptance of Norplant. (200) These Norplant proposals
aimed at poor, African American women are based upon the concept that poor,
Black women are "deviant" and thus less deserving of motherhood than White
"Real" women were expected to be pious, pure, submissive, and domestic,
middle-class and white. Black women, on the other hand, were presumed to
conform to an entirely different set of characteristics-- characteristics
which precluded them from ever being seen as ideal women. Generally, four
controlling images of African-American women have emerged, all of which
deviate from the middle- and upper-class standard of womanhood: (1) "mammy,"
the faithful, obedient, nurturing, and caring domestic servant; (2) the
"matriarch," who is overly aggressive, unfeminine, and emasculating; (3)
the "welfare mother," who is irresponsible, lazy, and immoral; and (4)
the "Jezebel," who is sexually aggressive. . . . As a result, African-
American women are seen as "somehow less female, perhaps even less human
as well." Thus, they are not maternal nor are they deserving of motherhood.
As discussed supra, African American women have not had genuine access
to voluntary sterilization, but have been victims of involuntary surgical
procedures that strip them of their ability to reproduce. After the abuses
of the 1970s, the Department of Health and Human Services adopted regulations
to ensure that informed consent was obtained for all federally funded sterilizations.
However, there is inadequate monitoring of the consent regulations, and
whatever data is collected is not published or made publicly available.
5. Infertility Treatment
The ability to have children is as important as the ability to prevent
having children. Yet, discussions of reproductive issues concerning African
American women seldom include the need for infertility services. (205)
This is a significant issue because the risk of infertility is one and
a half times greater for African Americans than for Whites. (206)
Yet, seventy-five percent of low-income women in need of infertility services
have not received any services. (207) "Given that
the average fee for each infertility treatment is between $2,055 and $10,000,
it is no wonder that poorer couples, a disproportionate number of whom
are African Americans, do not pursue infertility treatment."
While infertility services are covered under Medicaid and Title X, (209)
little information is available on the amount of public funds spent on
6. Surrogacy (211)
There are two types of surrogacy arrangements. In the first type of
arrangement, a couple with the female partner unable to bear children uses
the male partner's sperm to inseminate a fertile woman, who becomes the"surrogate
mother." (212) Because this is a costly arrangement,
it is limited to affluent couples who are disproportionately White. While
there is significant potential for abuse of poor women, it is not likely
that they will be African American, because an egg obtained from an African
American woman would produce an African American child. (213)
The second type of surrogacy arrangement involves the use of an egg from
a female donor who is not the surrogate. The egg is fertilized, then transferred
into the uterus of another woman. This woman, the "gestational mother,"
has no genetic connection to the child. (214)
This type of arrangement is significantly more dangerous to poor, African
American women. It literally turns women into uterus prostitutes, wombs
for rent. It raises the issue of what constitutes motherhood: is it biology,
genetics or something else? (215) If African Americans--and
other women-- become breeder women for the affluent, it will be "painfully
reminiscent of slavery and the days of the breeder woman whose feelings
for her child, whether born out of love or out of rape, were disregarded
when men with power over her made decisions about the child." (216)
FN89. Minority Update: Genocide to Some; Vital Choice to Others, American
Political Network: Abortion Report, June 17, 1992, available in WESTLAW
FN90. See generally John D. Lantos, Race, Prenatal Care, and Infant
Mortality, in "IT JUST AIN'T FAIR": THE ETHICS OF HEALTH CARE FOR AFRICAN
AMERICANS 67, 67-74 (Annette Dula & Sara Goering eds., 1994) (providing
an overview of some factors affecting infant mortality, examining studies
that support the position that the difference is genetic, and discussing
the political implications of adhering to the genetic explanation of racial
differences in infant mortality).
FN91. Fern Shen & Peter Pae, Calls for Peace Met With Caution, WASH.
POST, Jan. 23, 1995, at D1 (reporting an anti-abortion demonstration where
protester Barbara Bell maintained that abortion contributes to the genocide
of African Americans); Leonard Hughes & Hamil R. Harris, End of Abortion
Ban Draws Fire, Praise, WASH POST, Nov. 4, 1993, at J1 (reporting comments
by Archbishop G. Augustus Stallings, head of the African American Catholic
Congregation, acknowledging the right of women to choose, but insisting
that abortion is genocide to African Americans); see also MILLS, supra
note 69, at 274 (discussing Black activist Fannie Lou Hamer's view of abortion
and birth control as a form of genocide); Minority Update: Genocide to
Some; Vital Choice to Others, supra note 89 (quoting SUN poll of Maryland
residents: "more than 50 percent of blacks polled said they would support
a law to keep most abortions legal . . . [while] [t]hirty-two percent of
the black respondents said they would vote no."); Felicia R. Lee &
Rachel B. Gold, Empty Womb, ESSENCE, May 1990, at 51 (quoting Larry Hugick,
Vice President of the Gallup Organization, Inc.: "The most conservative
people on the abortion issue are Blacks, Hispanics and white Catholics.");
WEISBORD, supra note 69; Darity & Turner, supra note 69, at 1454-56
(discussing the view held by some Blacks that family-planning programs
are a potential means of race genocide).
FN92. Women: Blacks "No Longer Silent" on Abortion, American Political
Network: Abortion Report, Aug. 25, 1992, available in WESTLAW 08/25/92
APN-AB13 (quoting Akua Furlow of Black Americans for Life); see also Lee
& Gold, supra note 91, at 51-53 (noting that author La Verne Powlis,
who, ten years ago, sat on the board of Planned Parenthood of New York
City, maintains that "any destruction of Black life is devastating for
already embattled Black families.").
FN94. Vernellia R. Randall, Racist Health Care: Reforming an Unjust
Health Care System to Meet the Needs of African-Americans, 3 HEALTH MATRIX
127, 141 (1993) (emphasis added) (citation omitted).
[T]he theory of internal colonialism views blacks as slaves of society.
The history of blacks in the US is traced, beginning with the introduction
of slavery during the 1600s. The features of slavery--legal until the passage
of the 13th Amendment in 1865--persisted as a form of semi-slavery [sic]
1960 and as a different form of institutionalized racism later.
Id. at n.64; see also Lonnie R. Bristow, M.D., Mine Eyes Have Seen,
261 JAMA 284, 284-85 (1989) (noting major health issues facing African
Americans today). Since the civil rights and voting rights laws of the
early 1960s, the United States has seen significant changes in the status
of African-Americans. However, it is arguable whether "apartheid-U.S. .
. . or whether economic segregation and the perpetuation of our essentially
feudal status amount to its continuation, in fact, if not in law." Ramona
Hoage Edelin, Toward An African- American Agenda: An Inward Look, in THE
STATE OF BLACK AMERICA 1990 173, 178 (Janet Dewart ed., 1990) (noting that
death rate statistics seem to suggest that the feudal status of African
Americans has continued in fact).
FN95. Randall, supra note 94, at 141; Bristow, supra note 94, at 284.
FN96. Randall, supra note 94, at 142.
FN97. Id. at 141.
FN98. Id. at 142. Health status includes not only physical health but
mental health as well. Thus, in a racist, oppressive society, homicides
are as much an indication of mental health and public health as are suicides.
See generally Beth Alexander, Violence: A Public Health Problem (Editorial),
8 PEDIATRICS FOR PARENTS 8 (1992); Laurie Jones, Gun Violence As Public
Health Issue, AM. MED. NEWS, Nov. 16, 1992, at 3; C. Everett Koop, M.D.
& George Lundberg, M.D., Violence in America: A Public Health Emergency,
267 JAMA 3075 (1992) (defining violence as a mental/public health issue,
as well as a major social and political concern); Antonia C. Novello, M.D.
et al., A Medical Response to Violence, 267 JAMA 3007 (1992) (referring
to violence as an assault on the health of Americans); James S. Belloni
et al., Application of Principles of Community Intervention, 106 PUB. HEALTH
REP. 244, 244 (1991) (asserting that violence takes a high toll in "mortality,
morbidity, quality of life, and use of health care resources. . . .").
Moreover, violence has been a community problem from early American history.
"Before there was professional law enforcement, everyone in a community
was involved in crime prevention." Id. Thus, recognizing homicide as a
health issue is a return to deep-rooted ideas of community. Id. See generally
Dan E. Beauchamp, Community: The Neglected Tradition of Public Health,
HASTINGS CENTER REP., Dec. 1985, at 28 (discussing the governmental power
exerted to control or influence lifestyle choices of Americans).
FN99. Randall, supra note 94, at 142; Ronald M. Andersen et al., Black-White
Differences in Health Status: Methods or Substance?, in HEALTH POLICIES
AND BLACK AMERICANS 84 (David P. Willis ed., 1989) (citing the National
Center for Health Statistics 1986a, Table 21) (discussing the national
health policies on the health status of the Black population in the United
FN100. Randall, supra note 94, at 142. "This is the rate of death per
100,000 live births from deliveries and complications of pregnancy, childbirth
and the immediate period after childbirth (the puerperium)." Id. at n.70
(citing U.S. DEPT. OF HEALTH & HUMAN SERVICES, HEALTH STATUS OF MINORITIES
AND LOW INCOME GROUPS: THIRD EDITION 20 (1991) (Table 1)).
FN101. Id. at 141 n.66 (citing U.S. DEPT. OF HEALTH & HUMAN SERVICES,
HEALTH STATUS OF MINORITIES AND LOW INCOME GROUPS: THIRD EDITION 26-27,
143 (1991) (Table 13; Table 3)).
FN102. Id. at 142 ("The homicide rate for African-American males living
within Standard Metropolitan Statistical Areas (SMSAs) is more than twice
that for young African-American males residing outside SMSAs."); id. at
142 n.71 (citing Belloni, supra note 98, at 245-46; Homicide Among Young
Black Males--United States, 1970-1982, 34 MORBIDITY & MORTALITY WKLY.
REV. 629-33 (1985)).
FN103. Id. at 142; Andersen, supra note 99, at 84 (quoting National
Center for Health Statistics 1986a, Table 21).
FN104. Randall, supra note 94, at 140 (citing U.S. DEPT. OF HEALTH HUMAN
SERVICES, HEALTH STATUS OF MINORITIES AND LOW INCOME GROUPS: THIRD EDITION
108 (1991) (Table 10)).
FN105. Id. at 143.
FN107. Id.; see also H.R. REP. NO. 804, 101st Cong., 2d Sess. 19 (1990),
reprinted in 1990 U.S.C.C.A.N. 2311, 2330 (finding that African Americans
are disproportionately represented among individuals from disadvantaged
backgrounds and that the health status of individuals from disadvantaged
backgrounds, including racial and ethnic minorities, in the United States
is significantly lower than the health status of the general population
of the United States).
FN108. See Perils of Being Born Black: Life Expectancy for African Americans
Is Sinking, TIME, Dec. 10, 1990, at 78, available in 12/10/90 TIME MAG.
78, 1990 WL 2757574 (asserting that the higher mortality rates of African
Americans stem not only from those factors which relate directly to the
perils of living in poor, violent neighborhoods, but that other socio-economic
problems, including second-rate education and inadequate access to doctors
and hospitals, also hold down African Americans' life expectancy rates).
FN109. Randall, supra note 94, at 143 n.75.
FN110. See generally Jean J. Schensul & Barbara H. Guest, Ethics,
Ethnicity, and Health Care Reform, in "IT JUST AIN'T FAIR": THE ETHICS
OF HEALTH CARE FOR AFRICAN AMERICANS 24 (Annette Dula & Sara Goering
eds., 1994) (advocating the creation of new, community-based and culturally
appropriate health care options); Vernellia R. Randall, Does Clinton's
Health Care Reform Proposal Ensure [E]qual[ity] of Health Care for Ethnic
Americans and the Poor?, 60 BROOK. L. REV. 167 (1994) (using President
Clinton's 1993 Health Security Act proposal as a basis for analysis, the
author analyzes the potential for health care reform for ethnic Americans
and concludes that health care reform will fail ethnic Americans and the
FN111. Slavery in North America was one of the "harshest form[s] of
social relations ever to exist." ALPHONSO PINKNEY, BLACK AMERICANS 2 (4th
ed. 1993). The slave had no rights and received no protection from society.
The slave owner had absolute power over the slave. Id.
FN112. Id. at 6; Woodrow Jones, Jr. & Mitchell F. Rice, Black Health
Care: An Overview, in HEALTH CARE ISSUES IN BLACK AMERICA: POLICIES, PROBLEMS
& PROSPECTS 6 (Woodrow Jones, Jr. & Mitchell F. Rice eds., 1987);
see also Mitchell F. Rice, On Assessing Black Health Status: A Historical
Overview, 9 URB. LEAGUE REV. 6 (1985-1986). The dual status of slaves as
valuable property and as persons with human rights may have encouraged
some slave owners to provide at least minimal health care. See generally
J. Thomas Wren, A Two-Fold Character: The Slave as Person and Property
in Virginia Court Cases, 1800-1860, 24 S. STUD. 417-31 (1985) (maintaining
that although slaves were perceived as property in the antebellum South,
Virginia courts often recognized their humanity as well). By 1860, the
Southern legal system had begun to accept an implicit duality in the states
of the slaves as both property and person. See Arthur Howington, "A Property
of Special and Peculiar Value": The Tennessee Supreme Court and the Law
of Manumission, 44 TENN. HIST. Q. 302-17 (1985) (discussing a Tennessee
court's recognition of limited humanity for slaves); Winstanley Briggs,
Slavery in French Colonial Illinois, 18 CHI. HIST. 66, 75 (1989-1990) (arguing
that the high cost of slaves and the risk of offending tribal neighbors
led the settlers to treat their slaves as subordinate, but valuable property).
FN113. PINKNEY, supra note 111, at 19 (citing JOHN H. FRANKLIN, RECONSTRUCTION:
AFTER THE CIVIL WAR 36-37 (1961)).
FN114. Throughout the period of Reconstruction, attempts were made to
obstruct the progress toward "racial democracy." PINKNEY, supra note 111,
at 20. The 1876 election was in dispute between Rutherford B. Hayes (Republican)
and Samuel Tilden (Democrat). Hayes was declared the winner with the understanding
that the remaining troops in the South would be withdrawn, the South would
be accorded home rule, and with the assurance that the "dominant whites
[would have] political autonomy and nonintervention in matters of race
and policy. . . ." Id. at 21 (citing C. VANN WOODWARD, REUNION AND REACTION:
THE COMPROMISE OF 1877 AND THE END OF RECONSTRUCTION 246 (1966)). Thus,
the Republican Party "abandon[ed] the blacks to former slaveholders . .
. [and the] compromise signaled a return toward slavery. . . ." Id.
Jones & Rice, supra note 112, at 6. For instance, in 1875, Congress
passed the Civil Rights Act which made it a crime for a person to deny
any citizen equal access to accommodations in inns, public conveyances,
theaters, and other places of amusement. Civil Rights Act of 1875, 18 Stat.
335 (1875). In 1883, the Supreme Court declared the Civil Rights Act of
1875 unconstitutional. The Civil Rights Cases, 109 U.S. 3 (1883). In 1896,
the Court ruled that separate (segregated) facilities for African Americans
and European Americans did not violate the Thirteenth or Fourteenth Amendment.
Setting the pattern for race relations for more than three decades, the
ruling declared that "[i]f one race be inferior to the other socially,
the constitution of the United States cannot put them upon the same plane."
Plessy v. Ferguson, 163 U.S. 538, 552 (1896).
116. FN116. In 1954, the Court questioned the "separate but equal" doctrine
of Plessy v. Ferguson. Brown v. Board of Educ., 347 U.S. 483 (1954). In
particular, in a unanimous decision, the Court found that legally sanctioned
racial segregation is usually interpreted as connoting the inferiority
of blacks, which adversely affects the educational development of black
children. Id. at 494. "Any language in Plessy v. Ferguson contrary to this
finding is rejected." Id. at 494-95. Brown v. Board of Education was a
significant milestone in civil rights. However, it was the Civil Rights
Movement of the 1960s which culminated in the Civil Rights Act of 1964
and the Voting Rights Act of 1965, which resulted in many of the overt
signs of discrimination being eliminated. In particular, the Civil Rights
Act of 1964: prohibited the denial of the right to vote in national elections
because of race and made a sixth grade education a presumption of literacy
(Title I); prohibited discrimination in places of public accommodation
(Title II); authorized the Justice Department to file suits to desegregate
public facilities (Title III); authorized the Justice Department to file
suit to desegregate public schools or colleges (Title IV); established
the Commission on Civil Rights (Title V); prohibited discrimination in
federally financed programs (Title VI); prohibited discrimination in employment
(Title VII); authorized the gathering of registration and voting statistics
based on race (Title VIII); allowed for federal appeals court intervention
in civil rights cases to be remanded to state courts (Title IX); and established
the Community Relations Service in the Department of Commerce (Title X).
Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241-67 (codified
as amended in scattered portions of Titles of the United States Code sections
28 and 42).
FN117. Randall, supra note 94, at 149.
These practices restrict the admission of African-Americans to hospitals.
Discriminatory admission practices include:
. Layoffs of recently hired African-American physicians--where those
African-American physicians admit most of the African-American patients
served by the hospital;
. Not having physicians on staff who can accept Medicaid patients;
. Requiring pre-admission deposits as a condition of obtaining care;
. Refusing to participate in programs to finance care for low-income
patients not eligible for Medicaid; and,
. Accepting only patients of physicians with staff privileges when the
patients of such physicians do not reflect the racial composition of the
Id. (citations omitted).
FN118. "In a study done between 1937-1977, researchers showed that the
likelihood of a hospital's closing was directly related to the percentage
of African-Americans in the population. Throughout the 1980s many hospitals
relocated from heavily African-American communities to predominantly European-
American suburban communities." Id. at 149-50 (citations omitted).
FN119. The Crisis of the Disappearing Black Hospitals, EBONY, Mar. 1992,
FN121. "The transfer is medically appropriate only when the care required
is not available at the transferring hospital. However, many transfers
are for economic reasons, i.e., the patient was either uninsured or unable
to make admission deposits. African-Americans are disproportionately affected
by these practices." Randall, supra note 94, at 151-52 (citations omitted).
FN122. See generally Geraldine Dallek & Judith Waxman, "Patient
Dumping": A Crisis in Emergency Medical Care for the Indigent, 19 CLEARINGHOUSE
REV. 1413 (1986) (describing the recent attempts by local, state, and federal
governments to eliminate patient dumping).
FN123. Randall, supra note 94, at 152.
FN124. "For instance, as of October 30, 1990, only 530 facilities had
been investigated; only 139 facilities were found in violation of the statute;
and only five facilities actually lost their Medicare contracts." Randall,
supra note 94, at 153 (citations omitted).
FN125. Randall, supra note 94, at 153-54.
In Johnson [v. University of Chicago Hosps., 982 F.2d 230 (1992)], a
parent called the paramedics after her baby went into cardiac arrest. The
paramedics contacted University of Chicago hospital. The hospital told
the paramedics to take the child to another hospital even though it was
only five blocks away. The child was taken to a hospital without a pediatric
intensive care unit and had to be transferred to another hospital. The
child died after admission to the second hospital. The plaintiff sued on
common law claims and for violation of COBRA. The district court dismissed
and the Seventh Circuit upheld the dismissal of the COBRA claim. The Seventh
Circuit noted that 'In accordance with the plain meaning of the statutory
language, we do not believe that the infant ever 'came to' the hospital
or its emergency department. For purposes of COBRA, a hospital-operated
telemetry system is distinct from that same hospital's emergency room.'
The court went on to acknowledge that a '. . . hospital could conceivably
use a telemetry system to dump patients'; nevertheless, the court held
that the 'statute does not expressly address the question of liability
in such a situation.' Thus, the Seventh Circuit leaves the door open for
other hospitals to continue dumping patients, most of whom will be African-Americans.
Id. (citations omitted)
FN126. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, SERIES P60-184,
CURRENT POPULATION REPORTS, CONSUMER INCOME: MONEY AND POVERTY STATUS IN
THE UNITED STATES: 1992 xii (1993).
FN127. Racial Disparities in Medicaid Coverage for Nursing Home Care,
AN AFRICAN AMERICAN HEALTH CARE AGENDA: STRATEGIES FOR REFORMING AN UNJUST
SYSTEM (NAACP Legal Defense & Educ. Fund, Inc., Baltimore, MD), Oct.
FN129. See generally Warren J. Ferguson, The Physician's Responsibility
to Medically Underserved Poor People, in "IT JUST AIN'T FAIR": THE ETHICS
OF HEALTH CARE FOR AFRICAN AMERICANS 122 (Annette Dula & Sara Goering
eds., 1994) (arguing that physicians and their organizations must take
responsibility for understanding attitudes and values that shape their
delivery of health care to the underserved).
FN130. Jones & Rice, supra note 112, at 12 (citation omitted). Lack
of African American representation in medicine is traceable to segregation
in medical schools. Id. at 11. For instance, an African American did not
receive a degree in an American school until 1847. While some White schools
(nine) admitted African Americans prior to the Civil War, most schools
did not. In fact, even in 1971, twenty-one medical schools out of eighty-five
still had no African American students. Id. Even with the admission of
African Americans to predominantly White schools, the African American
medical schools, Howard University and Meharry Medical School, still train
seventy-five percent of African American physicians. Donald E. Wilson,
M.D., Minorities and the Medical Profession: A Historical Perspective and
Analysis of Current and Future Trends, 78 J. NAT'L MED. ASS'N 177, 178
(1986). See generally MAX SEHAM, M.D., BLACKS AND AMERICAN MEDICAL CARE
20-21 (1973) (discussing the correlation between racism and infant mortality);
U.S. DEPT. OF HEALTH & HUMAN SERVICES, MINORITIES & WOMEN IN THE
HEALTH FIELDS 19 (1990) (Table 3).
FN131. Jones & Rice, supra note 112, at 12 (citation omitted); U.S.
DEPT. OF HEALTH & HUMAN SERVICES, supra note 130, at 19 (Table 3);
see also Amanda Husted, Shortage of Black Dentists Has Ill Effect in Community,
ATLANTA J. & CONST., Aug. 19, 1991, at B3 (discussing effects of the
shortage of African American dentists on the community).
FN132. Jones & Rice, supra note 112, at 12 (citation omitted); U.S.
DEPT. OF HEALTH & HUMAN SERVICES, supra note 130, at 19 (Table 3).
FN133. One wonders how much of the disparate treatment is a legacy in
medical practice from slavery when "doctors frequently complained that
they were unable to administer treatment because the slaves were not amenable
to the same medical treatment as white patients." PINKNEY, supra note 111,
Council on Ethical and Judicial Affairs, Black-White Disparities in
Health Care, 263 JAMA 2344 (1990); see also Mark B. Wenneker, M.D. &
Arnold M. Epstein, M.D., Racial Inequalities in the Use of Procedures for
Patients with Ischemic Heart Disease in Massachusetts, 261 JAMA 253 (1989)
135. FN135. Council on Ethical and Judicial Affairs, supra note 134,
at 2344-45; see also Albert Oberman, M.D. & Gary Cutter, Ph.D., Issues
in the Natural History and Treatment of Coronary Heart Disease in Black
Populations: Surgical Treatment, 108 AM. HEART J. 688, 688-94 (1984) (discussing
results of study showing a preferential selection of whites for coronary
artery bypass grafting); cf. Charles Maynard et al., Blacks in the Coronary
Artery Surgery Study (CASS): Race and Clinical Decision Making, 76 AM.
J. PUB. HEALTH 1446, 1446-48 (1986) (finding that rate of bypass surgery
could not be explained by differences in clinical or angiographic characteristics).
FN136. Carol Stevens, System, Race and Suspicion Promote Medical Disparities,
DET. NEWS, Dec. 10, 1995, at A11. Because studies show a strong correlation
between a mother's weight gain and her baby's birthweight, experts now
advise pregnant women to gain a minimum of thirty pounds. Id. However,
the study showed most African American women were being told by their physicians
to gain less than twenty-two pounds. Id.
FN138. Council on Ethical and Judicial Affairs, supra note 134, at 2345;
see Carl M. Kjellstrand & George M. Logan, Racial, Sexual and Age Inequalities
in Chronic Dialysis, 45 NEPHRON 257, 260 (1987) ("[I]n 3 of 4 categories,
blacks received less dialysis than whites.").
FN139. See Council on Ethical and Judicial Affairs, supra note 134,
at 2345; Kjellstrand, supra note 138, at 260.
FN140. Id.; see also Carl M. Kjellstrand, Age, Sex, and Race Inequality
in Renal Transplantation, 148 ARCHIVES INTERNAL MED. 1305, 1307 (1988);
Paul W. Eggers, Effect of Transplantation on the Medicare End-Stage Renal
Disease Program, 318 NEW ENG. J. MED. 223, 229 (1988) (reporting that while
African Americans accounted for thirty-three percent of patients with end-stage
renal problems, they were only twenty-one of the patients who received
FN141. Stevens, supra note 136, at A11.
FN143. Council on Ethical and Judicial Affairs, supra note 134, at 2345;
see also John Yergan, M.D. et al., Relationship Between Patient Race and
the Intensity of Hospital Services, 25 MED. CARE 592, 600, 603 (1987) (suggesting
that non-White pneumonic patients receive fewer services, especially with
regard to intensive care).
FN144. Council on Ethical and Judicial Affairs, supra note 134, at 2345;
Yergan, supra note 143.
FN145. Stevens, supra note 136, at A11.
FN146. See JERRY E. BISHOP & MICHAEL WALDHOLZ, GENOME: THE STORY
OF THE MOST ASTONISHING SCIENTIFIC ADVENTURE OF OUR TIME--THE ATTEMPT TO
MAP ALL THE GENES IN THE HUMAN BODY (1990) (discussing the monumentous
task of mapping the human genes); Julia Walsh, Reproductive Rights and
the Human Genome Project, 4 S. CAL. REV. L. & WOMEN'S STUD. 145, 145-47
(1994). The "Human Genome Project" ("HGP") is a worldwide research endeavor
with the goal of analyzing the structure of human DNA and determining the
location of approximately 100,000 human genes. U.S. DEP'T OF HEALTH &
HUMAN SERVICES, UNDERSTANDING OUR GENETIC INHERITANCE: THE U.S. HUMAN GENOME
PROJECT (1992). The Department of Energy decided that the project was necessary
in order to begin to understand the thousands of genetic diseases that
afflict humans. The National Institutes of Health has joined the project
and is the major source of funds for all biomedical research in the United
States. Darryl Macer, Whose Genome Project?, 5 BIOETHICS 183, 184, 188
FN147. Walsh, supra note 146, at 147.
FN148. Id. at 147-48; see also OFFICE OF TECHNOLOGY ASSESSMENT, U.S.
CONG., PUB. NO. OTA-BA-373, MAPPING OUR GENES--THE GENOME PROJECTS: HOW
BIG, HOW FAST? 24 (1988).
FN149. Walsh, supra note 146, at 147-48. The Office of Technology Assessment
lists a number of diseases for which companies are presently developing
(or already have developed) DNA probes for diagnosis. This list includes
sickle cell anemia, cystic fibrosis, Duchenne muscular dystrophy, Hemophilia
B, Huntington's disease, and Down's syndrome (phenylketonuria). OFFICE
OF TECHNOLOGY ASSESSMENT, supra note 148, at 57.
FN150. Walsh, supra note 146, at 153.
FN151. Id. at 151-53; Sumner B. Twiss, Problems of Social Justice in
Applied Human Genetics, in GENETIC COUNSELING: FACTS, VALUES, AND NORMS
255, 255-62 (Alexander M. Capron et al. eds., 1979). But see James E. Bowman,
Genetic Screening: Toward a New Eugenics?, in "IT JUST AIN'T FAIR": THE
ETHICS OF HEALTH CARE FOR AFRICAN AMERICANS 165-181 (Annette Dula &
Sara Goering eds., 1994) (defending the need for scientific inquiry even
if abuses occur).
FN152. Walsh, supra note 146, at 153-54.
FN153. Id. at 157-58; Twiss, supra note 151, at 257.
FN154. DOROTHY NELKIN & LAURENCE TANCREDI, DANGEROUS DIAGNOSTICS:
THE SOCIAL POWER OF BIOLOGICAL INFORMATION 106-32 (1994).
FN155. Gostin, supra note 67.
FN156. See, e.g., Kathy L. Hudson et al., Genetic Discrimination and
Health Insurance: An Urgent Need for Reform, SCIENCE, Oct. 20, 1995, at
391; Gostin, supra note 67, at 117-19.
FN157. Patricia A. King, The Past as Prologue: Race, Class, and Gene
Discrimination, in GENE MAPPING: USING LAW AND ETHICS AS GUIDES 94 (George
J. Annas & Sherman Elias eds., 1992) (discussing the potential for
correlations between genetic susceptibility to disease and group membership
used to discriminate against racial and ethnic minorities).
FN160. Id. In 1991, the United States contributed $136 million to the
HGP, with $90 million coming from the National Institutes of Health and
$46 million coming from the Department of Energy. Although the total cost
of the HGP is currently unknown, it is estimated that the United States,
who has so far contributed 50% of the total cost of the project, will contribute
more than $3 billion over the next 15 years. U.S. DEP'T OF HEALTH &
HUMAN SERVICES, UNDERSTANDING OUR GENETIC INHERITANCE: THE U.S. HUMAN GENOME
PROJECT, supra note 146.
FN161. See, e.g., Alfreda A. Sellers-Diamond, Disposable Children in
Black Faces: The Violence Initiative as Inner-City Containment Policy,
62 UMKC L. REV. 423, 459-60 (1994) (citing SAMUEL F. YETTE, THE CHOICE:
THE ISSUE OF BLACK SURVIVAL IN AMERICA 82, 249 (1971)). For instance, Dr.
Frank R. Ervin and Dr. Lawrence Razavi conducted a research project that
suggested that normal individuals and criminals could be distinguished
genetically, as indicated by their fingerprints. Id. It was hoped that
the tests for this defect would "serve as a screening device for men upon
entry into the military or perhaps at the time they first entered the criminal
justice system." Id. at 460. Although "the XYY theory for the association
of abnormal fingerprints with an additional Y chromosome" was later discredited,
there persists a popular belief in the theory. Id.
Furthermore, there persists a popular belief in the relationship between
race and intelligence. This belief was fueled by Dr. Arthur R. Jensen's
"discovery" of the so-called genetic relationship between race and I.Q.
Id. at 460 (citing Arthur R. Jensen, How Much Can We Boost IQ and Scholastic
Achievement?, 39 HARV. EDUC. REV. 1 (1969)). According to Jensen, "African-Americans
averaged about fifteen points below the average of Whites on IQ tests [suggesting]
that this phenomenon was responsible for a difference in scholastic aptitude
between the groups." Id.
FN162. The Office of Technology Assessment has acknowledged the potential
problems raised by eugenics programs, stating:
The ethical debate about eugenic applications more properly focuses
on how to use new information rather than on whether to discover it. Eugenic
programs are offensive because they single out particular people and therefore
can be socially coercive and threatening to the ideas that human beings
have dignity and are free agents.
OFFICE OF TECHNOLOGY ASSESSMENT, supra note 148, at 84. Susan Rae Peterson
notes that genetic testing and prenatal diagnosis tend to depersonalize
women and childbirth. Susan Rae Peterson, The Politics of Prenatal Diagnosis:
A Feminist Ethical Analysis, in THE CUSTOM-MADE CHILD? WOMEN-CENTERED PERSPECTIVES
95, 101-02 (Helen B. Holmes et al. eds., 1981).
FN163. See Alexander M. Capron, Containing Health Care Costs: Ethical
and Legal Implications of Changes in the Methods of Paying Physicians,
39 CASE W. RES. L.R. 708 (1986) (concluding that the changes in access
and delivery of health care in the United States must be justified ethically,
as well as economically).
FN164. See generally Vernellia R. Randall, Ethnic Americans, Long-Term
Health Care Providers, and the Patient Self-Determination Act, in PATIENT
SELF- DETERMINATION IN LONG-TERM CARE: IMPLEMENTING THE PSDA IN MEDICAL
DECISIONS 126-27 (Marshall B. Kapp ed., 1994) (explaining how the Patient
Self- Determination Act is a representation of one subculture alone: "European-
American, middle-class, and middle-aged.").
FN167. Capron, supra note 163.
FN168. W.G. Manning et al., A Controlled Trial on the Effect of a Prepaid
Group Practice on Use of Services, 310 NEW ENG. J. MED. 1505-10 (1984).
FN169. See generally Randall, supra note 164.
FN172. OFFICE OF INSPECTOR GENERAL, THE DISTRIBUTION OF ORGANS FOR TRANSPLANTATION:
EXPECTATIONS AND PRACTICES 8 (1991). See generally Ian Ayres et al., Unequal
Racial Access to Kidney Transplantation, 46 VAND. L. REV. 805 (1993) (discussing
the access and distribution frequency of kidney transplants among racial
groups); Bertram L. Kasiske et al., The Effect of Race on Access and Outcome
in Transplantation, 324 NEW ENG. J. MED. 302-308 (1991) (finding that African
Americans have a four-fold higher risk for end- stage renal disease--irreversible
kidney failure--as well as a higher prevalence).
FN173. HEALTH CARE FINANCING ADMINISTRATION, END STAGE RENAL DISEASE
PATIENT: PROFILE TABLES (1988); Ayres, supra note 172, at 808-10.
FN174. Ayres, supra note 172, at 810.
FN175. Id. at 808.
FN176. Id. at 809.
FN177. OFFICE OF INSPECTOR GENERAL, supra note 172, at 11. Studies from
New York, Los Angeles, Miami, and Washington D.C. document that Blacks
were markedly underrepresented in donor statistics. Clive O. Callender,
Organ Donation in the Black Population: Where Do We Go From Here?, 19 TRANSPLANTATION
PROC. 36 (1987); Luis M. Perez et al., Organ Donation in Three Major American
Cities With Large Latino and Black Populations, 46 TRANSPLANTATION PROC.
555 (1988) (noting that Black families were two to three times less likely
to consent to organ donation than White families).
FN178. J. Michael Soucie et al., Race and Sex Differences in the Identification
of Candidates for Renal Transplantation, 19 AM. J. KIDNEY DISEASE 414 (1992)
(concluding that race and gender differences persisted after controlling
for the health status and socioeconomic factors of the patients).
FN179. Ayres, supra note 172, at 809-10.
FN180. Id. at 809.
FN181. Id. (citing Clive O. Callender et al., Attitudes Among Blacks
Toward Donating Kidneys for Transplantation: A Pilot Project, 74 NAT'L
MED. ASS'N J. 807 (1982)); THE PARTNERSHIP FOR ORGAN DONATION AND THE ANNENBERG
WASHINGTON PROGRAM, SOLVING THE DONOR SHORTAGE BY MEETING FAMILY NEEDS:
A COMMUNICATIONS MODEL 4 (Oct. 30-31, 1990) (suggesting that requests for
consent may be more effective if they came from persons of the same race);
Orly Hazony, Increasing the Supply of Cadaver Organs for Transplantation:
Recognizing That the Real Problem is Psychological Not Legal, 3 HEALTH
MATRIX 219 (1993) (discussing historical perspectives on organ shortages,
the current failure to meet existing needs for donations, suggestions for
increasing awareness of the need, and differing approaches to grieving
FN182. Law & Order: Sonata for a Solo Organ (NBC television broadcast,
Apr. 2, 1991).
FN183. BYRD & CLAYTON, supra note 19, at 20.
FN184. See generally id.
FN185. Washington, supra note 42, at 1F.
FN186. See generally Scott Simon, Sale of Human Organs Thriving in Some
Parts of the World (National Public Radio broadcast, Nov. 27, 1993), available
in 1993 WL 9415778. According to Colonel Yuri Dubiyegen, "Organ Transplantation
is the most profitable business in Russia and it will grow. Everyone knows
that you can get away with abducting people for a kidney or for any other
organ and they're convinced the criminals can get off scot-free." Id.;
see also Anthony Boadle, Film Exposes Black Market in Body Parts From Humans,
SEATTLE TIMES, Nov. 12, 1993, at A14 (illustrating that commercial documents
obtained by the makers of a documentary entitled "The Body Parts Business"
showed that one Russian company "sold 700 kidneys, hearts and lungs, 1400
livers, 18,000 thymus glands, 2,000 eyes and 3,000 pairs of testicles,
which are used for rejuvenating creams.").
Christian Williams described the problem this way:
"The variation between legal systems has allowed abuse of the simplest
method of organ procurement--organ sales from live donors. This system
is generally poorly regulated and fraught with health risks to both the
donor and recipient. Often, it is the poorer citizens of developing countries
who are supplying organs for the members of the upper class who can afford
them, either directly or through organ brokers. However, when the organ,
like any other valuable commodity, cannot be bought, it is stolen resulting
in flagrant violations of human rights."
Christian Williams, Combatting the Problems of Human Rights Abuses and
Inadequate Organ Supply Through Presumed Donative Consent, 26 CASE W. RES.
J. INT'L L. 315, 316 (1994). The fear is public in some parts of the world:
"a major newspaper has described the buying of kidneys from impoverished
donors for transplantation in private hospitals in Western countries. Some
donations were coerced, some for meager fees . . . It seems clear that
. . . the less privileged can be exploited to improve the health of the
more privileged." Id. at 322 n.33 (citations omitted). Christian Williams
advocates presumed donative consent as a method of combatting the problems
of human rights abuses and inadequate organ supply. Id. at 359.
FN187. Williams, supra note 186, at 359.
FN188. Id. at 358-59.
FN189. Rutherford, supra note 73, at 255. See generally Angela Y. Davis,
Surrogates and Outcast Mothers: Racism and Reproductive Politics, in "IT
JUST AIN'T FAIR": THE ETHICS OF HEALTH CARE FOR AFRICAN AMERICANS 41-55
(Annette Dula & Sara Goering eds., 1994) (discussing the political
and social ramifications for allowing surrogate motherhood).
FN190. "African Americans . . . are overrepresented [in industries such
as] laundry and dry cleaning, tobacco manufacture, fabric mills, smelters,
hospitals, and farmwork," all of which involve toxic substances that have
been linked to cancer. Rutherford, supra note 73, at 277.
FN191. 499 U.S. 187 (1991). The Supreme Court decided that Title VII
of the Civil Rights Act of 1964 prohibits an employer from excluding all
women of child-bearing capacity from certain jobs, even if the employer's
goal is to prevent possible damage to potential or developing fetuses.
Id. at 211.
FN192. Rutherford, supra note 73, at 277-78.
FN193. Id. at 278.
FN194. DANA HUGHES ET AL., CHILDREN'S DEFENCE FUND, THE HEALTH OF AMERICA'S
CHILDREN: MATERNAL AND CHILD HEALTH DATA BOOK 10 (1989).
FN195. CHILDREN'S DEFENSE FUND, BLACK AND WHITE CHILDREN IN AMERICA:
KEY FACT 76 (1985).
FN196. Darci Elaine Burrell, The Norplant Solution: Norplant and the
Control of African-American Motherhood, 5 UCLA WOMEN'S L.J. 401 (1995).
"Norplant consists of six, match-sized, silicon tubes which release a steady
stream of the synthetic hormone levnorgestill into the bloodstream to prevent
pregnancy. The tubes are surgically inserted under the skin of a woman's
arm and prevent conception for up to five years." Id. at 401 (citation
FN197. Donald Kimmelman, Poverty and Norplant: Can Contraception Reduce
the Underclass?, PHILA. INQUIRER, Dec. 12, 1990, at A18; see, e.g., Claude
Lewis, Norplant Editorial Was Offensive: The Thrust of the Editorial was
Aimed at the Black Underclass, Unjustly So, PHILA. INQUIRER, Dec. 21, 1990,
at A19. In the article, Kimmelman proposes to use Norplant to break the
"cycle of inner city poverty--one of America's greatest challenges." Id.
The main reason more black children are living in poverty is that the
people having the most children are the ones least capable of supporting
them. . . . All right, the subject makes us uncomfortable, too. But we're
made even more uncomfortable by the impoverishment of black America and
its effect on the nation's future.
FN198. David S. Coale, Norplant Bonuses and the Unconstitutional Conditions
Doctrine, 71 TEX L. REV. 189, 189-90 (1992); Dorothy E. Roberts, Norplant's
Threat to Civil Liberties and Racial Justice, N.J. L.J., July 26, 1993,
FN199. See, e.g., Tim Larimer, High School Offers Birth Control Implant,
Blacks Disagree on Merits of Program, DALLAS MORNING NEWS, Mar. 17, 1993,
at A37. The Laurence Paquin High School, a predominantly Black school for
pregnant girls or girls who have already had babies in Baltimore, Maryland,
was the first school to offer Norplant to teens. Sonya Live: Birth Control
in Schools (CNN television broadcast, Feb. 11, 1993).
FN200. Janet F. Ginzberg, Compulsory Contraception as a Condition of
Probation: The Use and Abuse of Norplant, 58 BROOK. L. REV.. 979, 979 (1992).
For example, the Ohio legislature introduced a bill which would amend the
definition of "child neglect" to include drug use during pregnancy and
which would require women twice convicted of this crime to use Norplant.
See Deborah Ann Bailey, Comment, Maternal Substance Abuse: Does Ohio Have
an Answer?, 17 U. DAYTON L. REV. 1019, 1032-33 (1992) (discussing OHIO
REV. CODE ANN. ss 2151.03(A); 2919.221(B)(2)).
FN201. Burrell, supra note 196, at 404.
FN202. Id. at 416 (citations omitted).
FN203. 42 C.F.R. ss 441.250-259 (1991) (sterilizations); 42 C.F.R. s
441.257 (1991) (informed consent); 42 C.F.R. s 441.258 (1991) (consent
FN204. Laurie Nsiah-Jefferson, Reproductive Laws, Women of Color, and
Low- Income Women, in REPRODUCTIVE LAWS FOR THE 1990s 23, 46 (Sherrill
Cohen & Nadine Taub eds., 1988).
FN205. But see Rutherford, supra note 73, at 267.
FN206. Id. (citing U.S. DEP'T OF HEALTH AND HUMAN SERVICES, PUBLIC HEALTH
SERVICES, HEALTH STATUS OF MINORITIES AND LOW INCOME GROUPS 58 (1985) (reporting
twenty-three percent of Black couples found infertile, compared to fifteen
percent of White couples)).
FN207. Id. at 268 n.56.
FN208. Id. at 268 (citing CONGRESSIONAL CAUCUS FOR WOMEN'S ISSUES, THE
WOMEN'S HEALTH EQUITY ACT OF 1990 18 (1990)).
FN209. 42 C.F.R. s 59.5(a)(1) (1995).
FN210. Rutherford, supra note 73, at 268.
FN211. See generally Davis, supra note 189, at 41-55.
FN212. Rutherford, supra note 73, at 268-69. The surrogate mother carries
the fetus to term. Most arrangements are governed by a contract whereby
the surrogate mother is paid a sum of money and agrees to relinquish all
parental rights to the child. Id. "The 'rate' is normally between $10,000
and $15,000, and the surrogate is paired with the infertile couple either
through a fertility agency or privately." Id. at 269.
FN213. Id. However, other women of color, particularly women from Third
World countries, may be exploited. Id. A chain of clinics in India, Jordan,
Pakistan, Egypt, Malaysia, Singapore, and Taiwan has been set up by U.S.
and Australian entrepreneurs. In vitro fertilization clinics in Brazil,
India, Malaysia, and Indonesia have been established particularly for sex
predetermination. Janice G. Raymond, Women as Wombs: International Traffic
in Reproduction, MS. MAGAZINE, May/June 1991, at 28, 31.
FN214. Rutherford, supra note 73, at 269-70.
FN215. The case of Anna Johnson, an African American woman who gave
birth to the child of a white husband and an Asian wife, highlights the
conflicts. The California Court of Appeals ruled that genetics was the
determining factor in parenthood. Anna J. v. Mark C., 286 Cal. Rptr. 369,
380-81 (Cal. Ct. App. 1991).
FN216. Rutherford, supra note 73, at 272 n.86 (citing ANGELA Y. DAVIS,
WOMEN, RACE AND CLASS 6-8 (1983) as stating:
Since slave women were classified as "breeders" as opposed to "mothers,"
their infant children could be sold away from them like calves from cows.
One year after the importation of Africans was halted, a South Carolina
court ruled that female slaves had no legal claims whatever on their children.
Consequently, according to this ruling, children could be sold away from
their mothers at any age because "the young of slaves . . . stand on the
same footing as other animals."
(omission in original) (footnote omitted)).