 Hello everyone, and thank you for taking the time to listen to this lecture on the law as a determinant of black health. My name is Vanille Yorando. As you can see, I'm a professor of law at the University of Dayton School of Law. And this is one lecture in a series that we will be conducting all year on black health and the role of the law in maintaining our eliminating health disparities. If you have not done so, it would be helpful to you if you review the video on black health status and if you review this video on racial inequality, the lecture done by Dr. Kathy Sander Phillips because those two videos lay the foundation for the arguments in this video. To start off with though, we need to understand the disparity in health status and how it came about and why social determinants are a central point. And hopefully this schema will give us some understanding. Okay, so we start off with Africans being taken as slaves and brought to this country. And that's a very important point in our discussion about the health of black Americans and the slave health deficit that exists. It's an important point because we have to acknowledge that Africans did not arrive at this country healthy as a group. And in fact, exactly the opposite occurred. They arrived unhealthy, which is essentially why enslaved Africans were taken to the Caribbean before being brought to the United States because you cannot put unhealthy product on the market and expect it to fetch a good price. And it shouldn't be of no surprise to us that people of African descent, black enslaved Africans were unhealthy. Not only did they undergo the stress of being enslaved on their homeland, ripped from their family, being kept in forts that were built to hold gold but are now holding slaves, enslaved people, not only did they undergo the stress of that, they had to undergo the voyage, the transatlantic slave voyage in which half of the Africans who were captured died on the voyage. They had to undergo sleeping in the urine and fetus and in the dead decaying bodies of enslaved people. They had to undergo being packed so tight that there was no room to move and all of the disease that went along with that. I know that among my community, the people of African descent in the United States, we often talk about how we have, quote, strong genes because we survived the voyage. Not with, there's a whole mythology that is connected with that saying, but to the, we have to understand that surviving didn't mean healthy. So we stepped, our ancestors stepped off of those slave ships, sick. And unlike any other group except maybe the Irish who also were, although they weren't enslaved, they, and so they didn't have to undergo the problem of slavery and being enslaved. The, the poorest of the Irish came here, packed in the bottom of cruise ships. But that's a discussion for another time. What we have here is people of African descent. Our ancestors came, arrived to the Caribbean and stepped off sick. Okay. The ones who didn't die from disease and illness are drowning, being thrown overboard, stepped off of the slave ships, barely surviving. So our entry into this country, not only was one of illness that was perpetuated throughout slavery. And there, there are studies done comparing the health of slaves to the health of, of indentured servants to the health of poor whites and repeatedly dissent the slaves, enslaved people had poor health. Now, you would think that coming out of, of slavery, that one of the things that the United States would do is provide reparations in the, at least in the form of bringing people's health status back up to a norm. And while there was a recognition of the need for more health facilities and for people of African descent for formerly enslaved persons, the effort to improve the health status and the educational status legally only went on for a year. The Freedom Bureau, which was enacted to do that was, the Congress voted it out a year later. Notwithstanding that formerly enslaved people, free ones made significant strides in the late 1800s, early 1900s. And part of that was the reason we saw the enactment of legal apartheid and de facto apartheid in the North. So what we saw was that people of African descent during the 20th century was mostly functioning under apartheid. And where apartheid didn't exist, racism exists. And those stressors led to deprivation and oppression, which embedded into our society racial inequalities. Racial inequalities in wealth and income, racial inequalities in education, racial inequality in criminal justice system, racial inequality in an environment, racial inequality in healthcare, racial inequality in housing, racial inequality in the marketing and the targeting of drugs, guns, alcohol and tobacco. Racial inequality in employment, racial inequality in food and water, racial inequality in every determinant of health. Those embedded racial inequalities affected not only the individuals but the communities in which they lived and in which we lived. And so when we talk about individual behavior and choices affecting health, and it does, when I choose not to exercise, that affects my health. When I choose not to eat fresh vegetables and food, that affects my health. But those choices are not made free of the social and racial inequalities that exist. As Professor Sanders Phillips discussed, racial inequalities is a risk factor for African American communities. Not only that, the chronic stress of racism affects the health, separate and independent from the racial inequalities that are embedded in our society. There is the chronic stress of racism that is not being born by the white community. That chronic stress of racism affects the health of individuals which affects the communities they live in. The more unhealthy your community is, the less resources your community has to deal with the problems. So how does law come into play? What we know is that there are few, if any, factors in social, economic, environmental, political factors that are not affected by the legal system. It is inevitable that the law or the legal system, and I prefer the legal system here than the law, because law can have a very narrow definition. And we're talking about not just a rule of law, but the entire legal system impacts some role in any effort to change society or to maintain society. If there is problems affecting change, one thing to think about and to ask is how is the legal system functioning to prevent change from happening? The legal system affects institutional behavior, it affects how community behaves, it affects how individual behaves, and all of that affects health. So what I want to do for a few minutes is to take a look at the legal system and to make sure that we all have the same basic understanding. And I know that many Americans have this understanding, but many don't, and we have many people who are not Americans looking at this video. So when we talk about the law, one of the things to think about is that the law is a set of rules and guidelines enforced through a set of practices and institutions. And that one of those institutions is the legal system. One of the things I tell my students all the time is that think of the law as the minimum set of values that a society believes it needs in order to function smoothly for the members of its society. The law is a value system. What is enforced, what rules are made, all represent a value. And where one value is represented, an opposite value could be represented. One of the purposes of the law is to limit and authorize conduct in society. And so what we see through tort law, through criminal law, through contract law, through discrimination law, we see all of these areas of law have the same basic approach. They limit and they authorize conduct. They may work on the corporate level or the organizational level or the individual level. And what's important here is that if the law doesn't limit conduct, then it authorizes it. And so to the extent that the law is silent on something, completely silent, then it is authorized. The other area that the law does, where we use the law is to set priority goals for our society. And we do that through our funding initiatives. So when we fund military, we fund proportionately more money for military than health and human services. It is because our priority is military. When we have proportionately more money going into prisons than we do into schools, it is because our priority for the society is imprisoning people rather than educating people. When we talk of the law, it's important there are several sources of the law beyond the Constitution and the statute. And of course those are important sources of the law. In fact, the US Constitution is the basic source of all law. Anything, any enacted law has to be constitutional under the federal Constitution and under the state Constitution. The 10th Amendment of the United States Constitution basically provides that the federal government is only granted power, only has the power that is granted by the Constitution. And specifically that the states, that all powers not granted to the federal government go to the state. Now having said that, there are some very broad powers granted to the federal government. The commerce, clause, the right to make treaties, the health and safety are all things that are granted to the United States government. Statues are written by the legislature, signed by the president, governor or appropriate city official, and they represent a general policy framework. State federal laws are seen to be the minimum and so state laws can go beyond a federal law so long as there is no conflict. We don't often think of regulations as law but they are. Legislatures, most laws cannot implement every rule needed to, cannot state every rule needed to implement a law. And so legislatures will delegate the power to administrative agency to make rules, regulations and guidelines. The rules and regulations add details and specifics to the law that are not in the law. And the guidelines are issued to add clarification to the law and generally they have the force of law. That is unless the courts rule them unconstitutional, we as members of the society are required to obey regulations in the same way we are required to obey statutes. Cases are the published opinions of judges that interpret statues, regulations and constitutional provisions. They also interpret behavior under common law. So one of the things that you hear off said often is that judges don't make law but that's not entirely true because judges make common law. And the legal system depends on those decisions. And we have a concept called stare decisis which says that those decisions are precedent and unless a judge can distinguish a case from previous cases that they are obligated to apply the rules and laws that came out of the previous cases. So the legal actors, we have the legislative actors who make laws and on legislatively we have federal and while we are not going to deal much with tribal in the context of black health, but tribal tribes have sovereignty and have the right to make laws for their tribes to enforce the law for their tribes and they have courts that interpret the laws for their tribes and you should just be aware of that. And so the legislator make laws, the executive enforce laws and the agencies operating under the president, the governor, the mayor and what that means is that police and prisons in my mind are legal actors because they operate under the agencies and other agencies like health and human services are legal actors and then you have the court that makes and interprets law. So how is the law a pathway, how is the law something that affects the social determinant of health? First of all the law is a pathway along which broader social determinants of health have an effect and I apologize for this slide being overlapping. What this means is that social determinants are interpreted through the legal system and that interpretation affects health outcomes. This means that the law acts as a pathway and because it acts as a pathway it contributes to health inequity because it perpetuates social patterns of inequity such as racial status. So we have experiences that are both negative or positive are unevenly distributed through the society and those experiences have psychosocial health effects. The fact is is that African Americans experience racism in a way that whites do not experience it if they experience it at all. And that racism has a psychosocial health effect and the law is a pathway through which that racism is being experienced. One of the things that Professor Kathy Sanders said, Sanders Phillips said is that racism and the effects of racism is a stressor that gets under the skin. The law can also be a way through which exposure to that individuals and communities are exposed to pathogens or pathogenic practices and those exposures are unevenly distributed. One of the things we know is that the location of toxic waste, toxic dumps are disproportionately housed in black communities. That is the EPA has done studies that have shown that the number one factor affecting where a toxic dump would be placed is not the class of the community, i.e. poor, but the race of the community. So what we see here is that certain social conditions structure health by influencing where people live and what they experience. How the normal path day-to-day operation of the legal system effectively effectuates the sorting of people into better and poor health because of the experiences they have. The law acts also acts as a shaper of social determinants. The law influences access to resources. And so what we have is the law provides for tax codes that maintain socioeconomic inequalities which determines health. The law creates institutions and procedures for governance and, for instance, the electoral law. So we know, for instance, that socially isolated groups, politically isolated groups have worse health than those who have political power. And we know that the law, by the way, it allows people to vote or not vote, maintains that social political construction and influence and therefore influence health. Another way the law works is by constructing the normative world in which people live. The law shapes racism. And through anti-discrimination law, the law shapes racism and thus influence health. Now, asking how the law contributes to the creation and maintenance and reproduction of social status and power offers a way to identify the role of law in health. So what we see is that the law acts as a pathway for social determinants to affect health, the green line, and acts as a shaper of that social determinant which affects health. Another work done on structural analysis has been done by Professor Scott Burris who looked at law as a social structure, as a structural factor in the spread of communicable disease. And in that look, he identified essentially four roles of law that I want to talk about. The first role is the law governs and protects the possession and the transfer of wealth. We know that wealth affects health. And we know that the law protects those that have wealth more so than it protects those that does not. And you can look at the tax code, you can look at property laws, you can look at internet trade rules, all point to the protection of wealth in our society. And we will take a look at that this year. The law also endows or fails to endow individuals with rights that equip them to avoid disease and illness. We know that having human rights are important to providing social conditions in which people can be healthy, to have education, the right to health care, the right to good housing. All of those, the free access to information, all of those influence health. And the law either endows people with those rights or fails to do so. The law regulates the meaning of identities and behavior, categorizing some as favored and others as disfavored. Thus, what we see is law operates to create and preserve social relations and status of power, not through, not simply through the regulation of behavior, but the regulation of social meaning. Finally, the law provides settings, legislative bureaucracy in courts in which important social issues are debated and a vocabulary for debating them. I propose to you that the problem with racism and social determinants is that we have not had adequate forum in the 21st century to debate the issues.