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Medicalization and the New Civil Rights

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Medicalization and the New Civil Rights Stanford Law Review Volume 72 May 2020 ARTICLE Medicalization and the New Civil Rights Craig Konnoth* Abstract. In the last several decades, individuals have advanced civil rights claims that rely on the language of medicine. This Article is the first to define and defend these “medical civil rights” as a unified phenomenon. Individuals have increasingly used the language of medicine to seek rights and benefits, often for conditions that would not have been cognizable even a few years ago. For example, litigants have claimed that discrimination against transgender individuals constitutes illegal disability discrimination. Others have argued that their fatigue constitutes chronic fatigue syndrome (which was, until recently, a novel and contested diagnosis) to obtain Social Security disability benefits. Homelessness has similarly been framed as a medical problem complete with a diagnosis code. Recently, progressive states have used Medicaid funds to help address homelessness. While some scholarship focuses piecemeal on specific areas—such as obesity or transgender rights—I use qualitative and quantitative evidence to show that these claims, which rely on their medical pedigree for their power, are part of a larger phenomenon, which I term “medical civil rights.” After defining the phenomenon and its scope, the core of the Article departs sharply from existing legal scholarship by defending medical civil rights-seeking. The piecemeal legal scholarship that explicitly addresses the question of medicalization uniformly critiques the use of medical civil rights. However, this siloed perspective has obscured the broad benefits these rights can provide. The legal protections that accompany medical status are more robust than those received by other vulnerable groups, such as the poor, the unemployed, or even racial minorities. Further, compared to other disadvantaged groups such as the unemployed or the poor, society holds the medically disadvantaged relatively blameless * Associate Professor of Law, University of Colorado School of Law. My thanks to Guy Charles, Allison Hoffman, Gregg Bloche, Glenn Cohen, Michelle Mello, Rachel Moran, Jessica Clarke, Jasmine Harris, Russell Robinson, David Studdert, Pierre Schlag, Olamide Abiose, Kevin Barry, Leo Beletsky, Fred Bloom, Khiara Bridges, Teneille Brown, Carl Coleman, Ruth Colker, Liz Emens, Dov Fox, Ariela Gross, Aya Gruber, Kaaryn Gustafson, Sharon Jacobs, Margot Kaminski, Ben Levin, Dayna Matthew, Kimani Paul- Emile, Anna Spain Bradley, Bill Sage, Ani Satz, Scott Skinner-Thompson, Maayan Sudai, Harry Surden, the Harvard Law School Health Law Workshop, the Culp Colloquium, Biolawpalooza, the Langston Workshop, and the Cardozo Law Faculty Colloquium for helpful comments, as well as to my medical professor colleagues, Lamont Barlow and Dan Pastula. Thanks to Kelly Ilseng for citation assistance and Matt Zafiratos for indefatigable document production. All errors are my own. 1165 Medicalization and the New Civil Rights 72 STAN. L. REV. 1165 (2020) for any disadvantage. Finally, medical language creates a sense of objectivity and legitimacy for those invoking it. These underappreciated benefits may far outweigh the disadvantages of medical civil rights-seeking. As it is invoked to liberate rather than oppress, medicine itself might become a site of jurisgenesis through which those invoking it conceive of themselves as rights-holding individuals. 1166 Medicalization and the New Civil Rights 72 STAN. L. REV. 1165 (2020) Table of Contents Introduction ......................................................................................................................................................... 1168 I. Medical Status ........................................................................................................................................... 1175 II. Medical Rights Advocacy ................................................................................................................... 1185 A. Formal Advocacy .......................................................................................................................... 1185 B. Nonformal Advocacy ................................................................................................................. 1194 III. Critiques of Medical Civil Rights................................................................................................... 1202 A. Individual Rights ........................................................................................................................... 1203 B. Institutional Harms ...................................................................................................................... 1209 IV. Strengths of Medical Civil Rights ................................................................................................. 1212 A. Formal Benefits .............................................................................................................................. 1213 1. Scope .......................................................................................................................................... 1213 2. Content ..................................................................................................................................... 1217 3. Comparing nonprotected categories ....................................................................... 1220 B. Normative Cachet ........................................................................................................................ 1222 1. Normative framework .................................................................................................... 1222 2. Surveys ..................................................................................................................................... 1223 3. Health policy and bad luck ............................................................................................ 1225 4. Health policy and social circumstances .................................................................. 1232 5. Advocacy examples ........................................................................................................... 1234 C. Medical Legitimacy ..................................................................................................................... 1237 V. Assessing Medical Civil Rights ........................................................................................................ 1244 A. A Foundational Defense ............................................................................................................ 1244 B. An Aspirational Defense ........................................................................................................... 1249 1. Inside medical institutions: Patient empowerment ........................................ 1250 2. Outside medical institutions ......................................................................................... 1254 3. Assessing the new approaches ..................................................................................... 1257 Conclusion ............................................................................................................................................................. 1262 Methodological Appendix ............................................................................................................................ 1264 Data Appendix .................................................................................................................................................... 1266 1167 Medicalization and the New Civil Rights 72 STAN. L. REV. 1165 (2020) Introduction There was a time when race was the civil rights master frame.1 In order to convince courts, legislators, and the public that they were worthy of rights, disadvantaged groups—women, gays, people with disabilities (PWD), and individuals born to unmarried parents—have all compared themselves to African Americans to assert discrete and insular status,2 with its accompanying judicial solicitude and legislative protection. But those days appear to have passed. Beset by “pluralism anxiety,” as new groups seek rights, courts have ceased to expand the legal haven that the Constitution provides and have contracted the reach of race-based antidiscrimination protections themselves.3 With the promise of racial justice tempered, if not broken,4 those seeking rights have looked elsewhere to frame their claims and, in so doing, themselves. In the meantime, an interesting phenomenon has emerged. Many individuals and groups have turned to medical frames as a vehicle for civil rights claims both inside and outside courts.5 Although gay activists have, for 1. For a description of the term “master frame,” see Robert D. Benford, Master Frame, in 2 THE WILEY-BLACKWELL ENCYCLOPEDIA OF SOCIAL AND POLITICAL MOVEMENTS, 723, 723-24 (David A. Snow et al. eds., 2013). 2. See SHARON BARNARTT & RICHARD SCOTCH, DISABILITY PROTESTS: CONTENTIOUS POLITICS 1970-1999, at 32 (2001); Mathews v. Lucas, 427 U.S. 495, 504 (1976) (noting that plaintiffs raised a race analogy). See generally SERENA MAYERI, REASONING FROM RACE: FEMINISM, LAW, AND THE CIVIL RIGHTS REVOLUTION (2011) (describing analogies to race in the women’s rights movement); Ellen C. Wertlieb, Minority Group Status of the Disabled, 38 HUM. REL. 1047 (1985) (describing analogies to race in the disability rights movement); Craig J. Konnoth, Note, Created in Its Image: The Race Analogy, Gay
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