From health care law to the social determinants of health: A public health law research perspective

University of Pennsylvania Law Review

Volumn 159, Issue 6, 2011, Pages 1649-1667

  Burris, Scott ^a,b  

^a TEMPLE UNIVERSITY   (United States)

^b ROBERT WOOD JOHNSON FOUNDATION   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79960192386     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (51)

1. Paula A. Braveman et al., Broadening the Focus: The Need to Address the Social Determinants of Health, 40 AM. J. PREVENTIVE MED. S1, S5 (2011).
2. See, e.g., COMM'N ON SOC. DETERMINANTS OF HEALTH, WORLD HEALTH ORG., CLOSING THE GAP IN A GENERATION: HEALTH EQUITY THROUGH ACTION ON THE SOCIAL DETERMINANTS OF HEALTH 26 (2008), available at http://whqlibdoc.who.int/ publications/2008/9789241563703-eng.pdf (urging global action to address the "social determinants of health" in order to achieve health equality worldwide);
3. Patricia A. Baird, The Role of Genetics in Population Health ("[F]ew would seriously dispute the fact that economic, social, and environmental factors are considerably more important determinants of health and disease worldwide [than genetic factors]."), in WHY ARE SOME PEOPLE HEALTHY AND OTHERS NOT?: THE DETERMINANTS OF HEALTH OF POPULATIONS 133, 158 (Robert G. Evans et al. eds., 1994);
4. Bruce G. Link & Jo Phelan, Social Conditions as Fundamental Causes of Disease, 35 J. HEALTH & SOC. BEHAVIOR (EXTRA ISSUE) 80, 81 (1995) (arguing that "some social conditions may be 'fundamental causes' of disease").
5. See CTRS. FOR DISEASE CONTROL & PREVENTION, U.S. DEP'T OF HEALTH AND HUMAN SERVS., ESTABLISHING A HOLISTIC FRAMEWORK TO REDUCE INEQUITIES IN HIV, VIRAL HEPATITIS, STDS, AND TUBERCULOSIS IN THE UNITED STATES 1 (2010), available at http://www.cdc.gov/socialdeterminants/docs/SDH-White-Paper-2010.pdf (outlining the "strategic vision" of the CDC to "reduc[e] health disparities and promot[e] health equity" by taking a holistic approach).
6. See Risa Lavizzo-Mourey & David R. Williams, Strong Medicine for a Healthier America: Introduction, 40 AM. J. PREVENTIVE MED. S1, S1 (2011) (describing the RWJF-established Commision to Build a Healthier America and its charge "to identify threats to health and practical solutions outside of the healthcare sector; timely strategies to produce positive changes ⋯; and actions to take now that would alter the trajectory of the health and wellbeing of our nation").
7. VULNERABLE POPULATIONS PORTFOLIO, ROBERT WOOD JOHNSON FOUND., A NEW WAY TO TALK ABOUT THE SOCIAL DETERMINANTS OF HEALTH 35 (2010) (emphasis omitted), available at http://www.rwjf.org/files/research/vpmessageguide20101029.pdf.
8. For those who learn better via text, I recommend RICHARD WILKINSON & KATE PICKETT, THE SPIRIT LEVEL: WHY GREATER EQUALITY MAKES SOCIETIES STRONGER (Bloomsbury Press 2009), a highly readable summary of the theories and evidence by people who have been in the thick of the science for their entire careers.
9. See also SOCIAL EPIDEMIOLOGY (Lisa F. Berkman & Ichiro Kawachi eds., 2000) (compiling an exhaustive selection of articles examining various social determinants of health).
10. Higher Income, Longer Life, ROBERT WOOD JOHNSON FOUND. COMM'N TO BUILD A BETTER AM. (June 25, 2009), http://www.rwjf.org/pr/product.jsp?id=44889 (search "Higher Income, Longer Life").
11. M. G. Marmot et al., Employment Grade and Coronary Heart Disease in British Civil Servants, 32 J. EPIDEMIOLOGY & COMMUNITY HEALTH 244, 244 (1978) (finding higher mortality in "working class men and women");
12. see also M. G. Marmot et al., Health Inequalities Among British Civil Servants: The Whitehall II Study, 337 LANCET 1387, 1387 (1991) ("[T]he lower the social class, the higher the mortality rates.").
13. For charts depicting this gradient, see Robert Wood Johnson Foundation Commission to Build a Healthier America Slideshow, ROBERT WOOD JOHNSON FOUND. (June 25, 2009), http://www.rwjf.org/pr/product.jsp?id=44889.
14. See, e.g., John Lynch & George Davey Smith, A Life Course Approach to Chronic Disease Epidemiology, 26 ANN. REV. PUB. HEALTH 1, 5 (2005) (listing early-childhood factors that increase the risk of adult pathologies).
15. See Carol M. Worthman & E. Jane Costello, Tracking Biocultural Pathways in Population Health: The Value of Biomarkers, 36 ANNALS HUM. BIOLOGY 281, 286-87 (2009) (recognizing the effects of psychosocial stress on future pathology).
16. Austin Sarat, "⋯ the Law Is All Over": Power, Resistance and the Legal Consciousness of the Welfare Poor, 2 YALE J.L. & HUMAN. 343 (1990).
17. See Scott Burris et al., Integrating Law and Social Epidemiology, 30 J.L. MED. & ETHICS 510, 510 (2002) (establishing a dual framework for analyzing the relationship between law and social determinants of health, as law both creates social conditions and acts as a pathway along which such conditions operate).
18. Göran Dahlgren & Margaret Whitehead, Policies and Strategies to Promote Social Equity in Health 11 fig.1 (Inst. for Future Studies, Working Paper No. 2007:14, 1991).
19. 1 OFFICE OF APPLIED STUDIES, SUBSTANCE ABUSE AND MENTAL HEALTH SERVS. ADMIN., NATIONAL SURVEY ON DRUG USE AND HEALTH 24 fig. 2, 10 (2009), available at http://www.oas.samhsa.gov/NSDUH/2k9NSDUH/2k9ResultsP.pdf (displaying that 8.8% of whites, compared to 9.6% of blacks, reported using an illicit drug within the past month).
20. See OFFICE OF APPLIED STUDIES, SUBSTANCE ABUSE AND MENTAL HEALTH SERVS. ADMIN., THE NSDUH REPORT: INJECTION DRUG USE AND RELATED RISK BEHAVIOR, at fig.2 (2009), available at http://www.oas.samhsa.gov/2k9/139/139IDU-HTML.pdf (displaying that.18% of whites, compared to.14% percent of blacks, reported using injection drugs within the past year).
21. For a discussion of these issues, see Scott Burris et al., Addressing the "Risk Environment" for Injection Drug Users: The Mysterious Case of the Missing Cop, 82 MILBANK Q. 125, 131-34 (2004),
22. and Scott Burris et al., Racial Disparities in Injection-Related HIV: A Case Study of Toxic Law, 84 TEMP. L. REV. (forthcoming 2011), available at http://ssrn.com/abstract=1702469.
23. Scott Burris et al., Making the Case for Laws That Improve Health: A Framework for Public Health Law Research, 88 MILBANK Q. 169, 171 (2010).
24. Geoffrey Rose, Sick Individuals and Sick Populations, 14 INT'L J. EPIDEMIOLOGY 32 (1985).
25. In his contribution to this Symposium, Larry Gostin relies on epidemiological analyses that attribute common proximate causes of death to prior "actual" causes. Lawrence O. Gostin et al., Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population's Wellbeing, 159 U. PA. L. REV. 1761, 1793-94 (2011). For example, many car accident deaths can be reclassified as drug or alcohol deaths because they are actually the result of intoxication rather than some intrinsic risk of driving.
26. See, e.g., J. Michael McGinnis & William H. Foege, Actual Causes of Death in the United States, 270 JAMA 2207, 2210 (1993) (discussing the incidence of illicit drug use in motor vehicle fatalities). This sort of work is extremely useful in identifying promising points of population-level intervention. Although the framework I present here does not undertake to attribute mortality to social determinants, it can be seen as moving the analysis of mortality away from the rightmost end of the spectrum toward a paradigm that recognizes factors that can produce death via multiple mechanisms.
27. See K. M. Blankenship et al., Structural Interventions: Concepts, Challenges and Opportunities for Research, 83 J. URBAN HEALTH 59, 68 (2006) (arguing that structural interventions offer a complement to individual-based solutions in preventing HIV and may achieve more widespread benefits);
28. Kim M. Blankenship et al., Structural Interventions in Public Health, 14 AIDS S11, S11-12 (2000) (defining structural interventions as working to change the context of health care production, locating the broader source of the problem, and classifying such interventions based on their focus on availability, acceptability, and accessibility of health services).
29. See Lindsay McLaren et al., Rose's Population Strategy of Prevention Need Not Increase Social Inequalities in Health, 39 INT'L J. EPIDEMIOLOGY 372, 373-75 (2010) (proposing to define intervention strategies on an agentic/structural continuum as a solution to the critique that population-wide health interventions inadvertently exaggerate, rather than ameliorate, social inequalities in health).
30. See, e.g., PAUL PIERSON & JACOB S. HACKER, WINNER-TAKE-ALL POLITICS 3 (2010) ("From 1979 until the eve of the Great Recession, the top one percent received 36 percent of all gains in household income - even after taking into account the value of employer-sponsored health insurance, all federal taxes, and all government benefits.");
31. Gopal K. Singh & Mohammad Siahpush, Widening Socioeconomic Inequalities in U.S. Life Expectancy, 1980-2000, 35 INT'L J. EPIDEMIOLOGY 969, 975 (2006) (presenting data that show "substantial and increasing disparities in U.S. life expectancy over time, with the gap between the least-deprived and most-deprived groups widening from 2.8 years in 1980-82 to 4.5 years in 1998-2000").
32. See, e.g., John Lynch et al., Is Income Inequality a Determinant of Population Health? Part 1. A Systematic Review, 82 MILBANK Q. 5, 81-82 (2004) (recognizing the strong correlation between income inequality and population health in the United States as "exceptional," but suggesting that this link may be "confounded" by confusion with other causal mechanisms, such as regional composition differences);
33. Alvin R. Tarlov, Public Policy Frameworks for Improving Population Health, 896 ANNALS N.Y. ACAD. SCI. 281, 283-84 (1999) (acknowledging that modeling has so far failed to fully explain the dynamics of population health but nonetheless offering recommendations based on several broad categories of interventions).
34. Michelle M. Mello & Kathryn Zeiler, Empirical Health Law Scholarship: The State of the Field, 96 GEO. L.J. 649, 649 (2008).
35. See Scott C. Burris & Evan D. Anderson, Making the Case for Laws that Improve Health: The Work of the Public Health Law Research National Program Office, 39 J.L. MED. & ETHICS (SPECIAL SUPPLEMENT S1) 15, 15-16 (2011).
36. See Aaron S. Kesselheim & Kevin Outterson, Fighting Antibiotic Resistance: Marrying New Financial Incentives to Meeting Public Health Goals, 29 HEALTH AFF. 1689, 1691-92 (2010) (discussing potential solutions to underinvestment in antibiotic development, including extending patent terms, creating "wildcard patents," and increasing federal subsidies);
37. see also Aaron S. Kesselheim, Using Market-Exclusivity Incentives to Promote Pharmaceutical Innovation, 363 NEW ENG. J. MED. 1855, 1856 tbl.1 (2010) (examining the intended and collateral effects of various legal incentives on the availability of beneficial medicines).
38. See What Public Health Law Approaches Help Prevent Obesity?, PUB. HEALTH L. RES., http://www.publichealthlawresearch.org/public-health-topics/18-months/ project-brief/what-public-health-law-approaches-help-prevent-obesity (last visited Mar. 15, 2011) (describing a PHLR Program-sponsored project assessing the efficacy of state and local laws targeting childhood obesity).
39. See Has the HPV Vaccination Mandate in D.C. Improved Public Health?, PUB. HEALTH L. RES., http://www.publichealthlawresearch.org/grantee-project/has-hpv- vaccination-mandate-dc-improved-public-health (last visited Mar. 15, 2011) (describing a PHLR study analyzing health outcome effects of the District of Columbia's HPV vaccination mandate).
40. See How Does the Legal Authority for Infectious Disease Surveillance Affect States' Ability to Respond to Emerging Threats?, PUB. HEALTH L. RES., http://www.publichealthlawresearch.org/duration/18-months/grantee-project/ legal-authority-infectious-disease-surveillance-and-states-abilit (last visited Mar. 15, 2011) (describing a PHLR Program study exploring the effects of state vaccination-reporting laws on public health issues related to the H1N1 outbreak).
41. See How Does Land-Use Regulation Affect the Built Environment and Crime?, PUB. HEALTH L. RES., http://www.publichealthlawresearch.org/duration/30-months/ grantee-project/how-does-land-use-regulation-affect-built-environment-and-crime (last visited Mar. 15, 2011) (describing a PHLR Program study examining six Los Angeles neighborhoods to assess the effect of land use regulation on crime).
42. See Charles Tremper et al., Measuring Law for Evaluation Research, 34 EVALUATION REV. 242, 245 fig.1 (2010) (mapping a step-by-step process for creating practical, methodological legal data sets).
43. See, e.g., Jennifer K. Ibrahim et al., State Laws Restricting Driver Use of Mobile Communications Devices: "Distracted Driving" Provisions from 1992 to 2010, 40 AM. J. PREVENTIVE MED. (forthcoming 2011) (on file with author) (describing a complete data set of laws related to distracted driving).
44. See, e.g., Jeffrey Swanson et al., Racial Disparities in Involuntary Outpatient Commitment: Are They Real?, 28 HEALTH AFF. 816, 824-25 (2009) (finding disparate rates of outpatient commitment for the mentally ill between blacks and whites, although finding no evidence of racial bias).
45. See Do Hospital Community Benefit Requirements Help Public Health Activities?, PUB. HEALTH L. RES., http://www.publichealthlawresearch.org/public- health-topics/injury-prevention-evidence-briefs/grantee-project/ do-hospital-community-benefit (last visited Mar. 15, 2011) (using data acquired from IRS reporting requirements to analyze how nonprofit hospitals actually allocate community benefit funds).
46. Steven H. Woolf et al., Citizen-Centered Health Promotion: Building Collaborations to Facilitate Healthy Living, 40 AM. J. PREVENTIVE MED. S38, S39 (2011).
47. Wilhelmine D. Miller et al., Healthy Homes and Communities: Putting the Pieces Together, 40 AM. J. PREVENTIVE MED. S48, S52 (2011).
48. See What Is the Impact of Laws Addressing Consumption and Purchase of Sugar-Sweetened and Citric-Acid Drinks on Oral Health, PUB. HEALTH L. RES., http://www.publichealthlawresearch.org/duration/18-months/grantee-project/ addressing-consumption-and-purchase-patterns-sugar-sweetened-beve (last visited Mar. 15, 2011) (announcing the investigation of what law and legal practices affect the consumption and purchase of beverages that adversely affect oral health in central Appalachia).
49. PUB. HEALTH L. NETWORK, http://www.publichealthlawnetwork.org (last visited Mar. 15, 2011).
50. All Public Health Topics, PUB. HEALTH L. RES., http:// publichealthlawresearch.org/hub/all-public-health-topics (last visited Mar. 15, 2011).
51. See Theory, Practice and Evidence, PUB. HEALTH L. RES., http://www.publichealthlawresearch.org/theory-practice-evidence (last visited Mar. 15, 2011) (describing commissioned papers assessing the available evidence regarding the link between law and public health).