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Dying for Equal Protection Hastings Law Journal Volume 71 Issue 3 Article 2 4-2020 Dying for Equal Protection Teri Dobbins Baxter Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Teri Dobbins Baxter, Dying for Equal Protection, 71 HASTINGS L.J. 535 (2020). Available at: https://repository.uchastings.edu/hastings_law_journal/vol71/iss3/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Articles Dying for Equal Protection † TERI DOBBINS BAXTER When health policy experts noticed that health outcomes for African Americans were consistently worse than those of their White counterparts, many in the health care community assumed that the poor outcomes could be blamed on poverty and lifestyle choices. Subsequent research told a different story. Studies repeatedly showed that neither money, nor marriage, nor educational achievement protect African American men, women, or children from poor health. Instead, the disparities were more likely explained by racism. Specifically, multiple studies have shown that experiencing racism has been linked to increased infant and maternal mortality rates, elevated stress levels, and an increased risk of numerous diseases, including cardiovascular disease, high blood pressure, and breast cancer. Mounting evidence makes it clear that health disparities cannot be eliminated simply by changes in diet or socioeconomic status; it requires eliminating racism and building a more just society. A just society starts with a just government, but racially-biased government policies and practices have existed since the founding of our country and have had—and continue to have—a direct and devastating impact on the health of African American individuals and communities. This Article traces the racially discriminatory laws and policies enacted or tolerated by state and federal governments in America from colonial times to the present—including slavery, Black Codes, convict leasing, lynching, segregation, and discriminatory policing—and links that racism to poorer health outcomes for African Americans. It concludes by discussing the need for criminal justice and social reforms to explicitly consider their impact on the health of the African American community. † Williford Gragg Distinguished Professor, University of Tennessee College of Law; B.A., J.D. Duke University. The author thanks Professor Eliza Fink for her invaluable research assistance, and Professors Zack Buck, Michael Higdon, and David Wolitz for their helpful comments on a draft of this Article. [535] 536 HASTINGS LAW JOURNAL [Vol. 71:535 TABLE OF CONTENTS INTRODUCTION ............................................................................................... 537 I. HEALTH DISPARITIES AND THEIR CAUSES IDENTIFIED ............................ 540 A. HEALTH DISPARITIES IDENTIFIED ................................................ 540 B. RACISM AS A CAUSE OF HEALTH DISPARITIES ............................ 541 II. GOVERNMENTS’ FAILURE TO PROTECT AFRICAN AMERICANS BEFORE AND IMMEDIATELY AFTER THE CIVIL WAR ........................................ 546 A. NO LEGAL DUTY TO PROTECT: RACISM FROM COLONIAL TIMES THROUGH THE CIVIL WAR ................................................ 547 B. FOURTEENTH AMENDMENT RATIFICATION AND THE SUPREME COURT’S RESTRICTIVE INTERPRETATION .................................... 548 1. History and Purpose of the Fourteenth Amendment ............. 549 2. The Supreme Court’s Narrow Interpretation Limits the Effectiveness the of the Fourteenth Amendment .................... 552 III. STATE-TOLERATED AND STATE-SPONSORED RACISM FROM RECONSTRUCTION THROUGH THE CIVIL RIGHTS ERA ........................ 558 A. BLACK CODES .............................................................................. 559 B. CONVICT LEASING ....................................................................... 560 C. LYNCHING .................................................................................... 562 D. RACIALIZED CAPITAL PUNISHMENT ............................................ 569 E. RACISM IN HOUSING .................................................................... 572 IV. THE CIVIL RIGHTS ERA ......................................................................... 574 V. GOVERNMENT DISCRIMINATION CONTINUES TO DRIVE HEALTH DISPARITIES ......................................................................................... 577 A. POLICING IN SCHOOLS: THE SCHOOL-TO-PRISON PIPELINE ......... 578 B. OVER-POLICING IN AFRICAN AMERICAN COMMUNITIES: THE WAR ON DRUGS AND STOP-AND-FRISK ....................................... 579 C. DEADLY REACTIONS TO UNREASONABLE FEAR .......................... 583 D. DISCRIMINATION IN HEALTHCARE SETTINGS .............................. 584 VI. THE NEED FOR JUST GOVERNMENT POLICIES AND HEALTH- CONSCIOUS REFORMS ......................................................................... 585 CONCLUSION ................................................................................................... 587 April 2020] DYING FOR EQUAL PROTECTION 537 INTRODUCTION When health policy experts noticed that health outcomes for African Americans were consistently worse than those of their White counterparts, many in the health care community assumed that the poor outcomes could be blamed on poverty and lifestyle choices.1 Early efforts to eliminate the disparities focused on education, building stable two-parent families, and economic success, but the disparities persisted. Subsequent studies repeatedly showed that neither money, nor marriage, nor educational achievement protect African American men, women, or children from poor health.2 In fact, a high income and educational attainment sometimes increased their health risks.3 Instead, researchers found that the disparities were more likely explained in significant part by racism.4 Specifically, multiple studies have shown that being the victim of racial discrimination and witnessing others of the same race who are targets of racism negatively impacts the health of racial minorities, especially African Americans.5 Experiencing racism has been linked to increased infant and maternal mortality rates,6 elevated stress levels, and an increased risk of numerous diseases, including cardiovascular disease, high blood pressure, and breast cancer.7 This evidence makes it clear that health disparities cannot be eliminated simply by changes in habits or socioeconomic status; it requires eliminating racism and building a more just society. But eliminating (or even reducing) racism and racism-related stress requires an understanding of how racism has been fostered and perpetuated in our society. Racism is not harbored and spread solely by individuals. Racially-biased government policies and practices have existed since the founding of our country and have had—and continue to have—a direct and devastating impact on the health of African American individuals and communities. Beginning in colonial times, state and federal governments supported slavery. The physical and emotional trauma associated with being treated as chattel, and the lack of access to healthcare (unless it benefitted the slave owner) marked the beginning of racial health disparities in America.8 Even after the Civil War and ratification of 1. See, e.g., DAYNA BOWEN MATTHEW, JUST MEDICINE: A CURE FOR RACIAL INEQUALITY IN AMERICAN HEALTH CARE 1 (2015) (“[I]t is popular to blame the poor for their poor health by pointing to risky health behaviors.”); see also infra Subpart I.B. 2. MATTHEW, supra note 1, at 1 (“[R]acial and ethnic differences in health treatment and outcomes persist in multiple studies even after controlling for differences in insurance status, income, education, geography, and socioeconomic status.”) (footnote omitted). 3. See IMARI Z. SMITH ET AL., FIGHTING AT BIRTH: ERADICATING THE BLACK-WHITE INFANT MORTALITY GAP 4 (2018) (noting that the infant mortality rate is highest among African American women with doctorate or professional degrees). 4. See infra Subpart I.C. 5. See, e.g., SMITH ET AL., supra note 3, at 4, 6. 6. See David R. Williams & Selina A. Mohammed, Discrimination and Racial Disparities in Health: Evidence and Needed Research, 32 J. BEHAV. MED. 20, 20–21 (2009); see also infra Subpart I.B. 7. Williams & Mohammed, supra note 6, at 27–38; see infra Subpart I.B. 8. MATTHEW, supra note 1, at 10 (describing how conditions of slavery and discrimination impacted the health of slaves). 538 HASTINGS LAW JOURNAL [Vol. 71:535 the Fourteenth Amendment, the federal government continued to tolerate racist policies targeting African Americans. Laws such as Black Codes limited economic opportunities for African Americans and ensured continuing poverty and lack of access to quality care.9 And although the Fourteenth Amendment requires equal protection of the laws, for many decades Congress and the states failed to pass or enforce laws that would have provided protection against racially-motivated violence, including the thousands of lynchings that took place after the end of the Civil War and into the first half of the twentieth century.10 Lynchings not only cut short the lives of so many African Americans, they also served to terrorize entire communities with the knowledge that African Americans could be
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