Legislating Discrimination: One More Reason to Oppose Obamacare

COMMENTARY Health Care Reform

Legislating Discrimination: One More Reason to Oppose Obamacare

Dec 23, 2009 4 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

What's the worst bill ever seriously considered for passage by the U.S. Congress? Certainly both the House health-reform bill and Sen. Harry Reid's health bill are leading contenders.

Both proposals are obscenely expensive. Both limit our freedom to choose our families' health care. And both would legislate racial and other forms of discrimination -- making them not only unconstitutional, but immoral, counterproductive, and dangerous.

Within the last three months, the U.S. Commission on Civil Rights has twice sent letters to the president and the leaders of the House and Senate warning them of discriminatory provisions in both bills. But those warnings have been ignored, and the problems remain.

Take Reid's bill. It directs the secretary of health and human services to award federal grants worth billions of dollars to educational institutions that train medical-service providers. However, "priority" for federal dollars is to be given only to those institutions offering "preferential" admissions to underrepresented minorities (according to race, national origin, sex, sexual orientation, and religion, depending on which section of the bill you look at). Thus, schools will be unable to compete for essential federal funding unless they adopt admission policies that intentionally and deliberately discriminate. It guarantees the institution of racist and sexist quotas sanctioned and encouraged by the federal government in what Linda Chavez of the Center for Equal Opportunity correctly calls "a new racial spoils system."

The bill also declares that institutions training social workers, psychologists, psychiatrists, behavioral pediatricians, psychiatric nurses, and counselors will be ineligible for federal grants unless they discriminate. According to Section 756, these programs must enroll "individuals and groups from different racial, ethnic, cultural, geographic, religious, linguistic, and class backgrounds, and different genders and sexual orientations" and demonstrate "knowledge and understanding of the concerns of the[se] individuals and groups." If the schools fail to abide by these requirements, they will be liable for "liquidated damages."

The Senate bill even creates a federally funded and administered medical school called the United States Public Health Services Track to "grant appropriate advanced degrees." Priority in admissions is to be given to "students from rural communities and underrepresented minorities." ("Underrepresented minorities" is liberal code for "Asians need not apply.")

Naturally, other sections of the bill require lots of data collection regarding race, ethnicity, sex, and so on. Those data will be used to implement quotas of all kinds and put providers at risk of being sued. For example, the data will help trial lawyers pursue "disparate impact" cases against physicians and hospitals -- even if the differing health outcomes of patients have nothing to do with actual discriminatory treatment by providers. One provision even requires the secretary of health and human services to consult with "representatives of racial and ethnic minorities" about the content of promotional labels or print ads for drugs. Racial politics is poised to trump scientific accuracy in drug labeling.

In general, the bill reflects two articles of faith prevalent on the left: (1) that discrimination is perfectly acceptable when practiced in favor of certain minority groups; and (2) that racial disparities in health outcomes arise because doctors and patients don't have the same racial or ethnic or cultural background. The latter is, of course, nonsense. As the Civil Rights Commission said succinctly, the assumption that "racial health disparities are caused by a shortage of medical professionals of particular races misdiagnose[s] the problem and may well exacerbate it."

Ethnic and racial disparities in health outcomes are caused by a variety of factors, including minorities' greater dependence on Medicaid, the federal-state health program for the poor, which is notorious for providing poor-quality care. For blacks, disparities also emerge because, in the words of the Civil Rights Commission, "as a population, black patients use different doctors, clinics and hospitals than white patients." Unfortunately, "the doctors who treat black patients ... are less likely to be highly credentialed." One study found that "blacks tend to live in parts of the country that have a disproportionate share of low-quality providers." At those hospitals, "both whites and blacks tend to receive low-quality care, but since blacks are overrepresented in such areas, the quality of the hospital will cause an overstatement of the role that race plays."

In, sum, the kind of care you get -- and your individual health outcome -- is determined by your doctor's skill, not by his race or "cultural sensitivity." Unfortunately, the Democrats' health-care legislation will force medical institutions to hire based on race and sex, not qualifications, and to lower their admission standards, which will lead to even more "low-quality" doctors. Medical students admitted based on lower qualifications generally perform more poorly on licensing exams.

Race-based admissions end up endangering patients -- such as those treated by Patrick Chavis, one of whom bled to death due to Chavis's medical malpractice. Chavis was the black applicant admitted to the University of California at Davis Medical School even though he had much weaker academic qualifications than Allan Bakke, a white applicant who was rejected from the school and subsequently was the plaintiff in a famous Supreme Court case. Chavis eventually lost his medical license because of his gross negligence, incompetence, and "inability to perform some of the most basic duties required of a physician."

Instead of helping ensure all Americans access to high-quality medical care, Harry Reid's bill seems intent on populating the medical community with more bad physicians like Patrick Chavis. The bill's discriminatory provisions are both unconstitutional and immoral. Over time, they will erode the quality of patient care. That's no way to "reform" our health system.

Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.

First Appeared in National Review Online

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