Abstract

Excerpted From: Kelly K. Dineen and Elizabeth Pendo, Engaging Disability Rights Law to Address the Distinct Harms at the Intersection of Race and Disability for People with Substance Use Disorder, 50 Journal of Law, Medicine & Ethics 38 (Spring, 2022) (154 Footnotes) (Full Document Requested)

The unethical, separate, and unequal system of health care for people with substance use disorder (SUD), a condition effecting approximately 20 million people each year, is the product of long standing and mutually reinforcing systems of racism and ableism in the U.S. Addiction exceptionalism in health care access, coverage, and treatment devastate the health and wellbeing of people with SUD and disproportionately harm people of color. Beyond traditional health care settings, the experiences of daily life for people with SUD--especially people of color with SUD-- are informed by profound epistemic, racial, and disability injustice that compound these harms. Legal norms that further this injustice include prohibitionist drug policies that selectively criminalize drug use and possession; racist policing, enforcement, and sentencing in the criminal legal system; refusals by drug courts and in carceral setting to allow appropriate medical care for people with SUD; child welfare law enforcement targeting Black pregnant women who use drugs; and continued efforts to block harm reduction services that effectively reduce morbidity and mortality from drug use made risky by prohibition. Across these settings, tools of structural oppression combine to subjugate people, especially Black, Latinx, and Indigenous people who use drugs, including those with SUD.

Over 30 years ago, Kimberlé Crenshaw coined the term “intersectionality” to capture forms of oppression that overlap and compound across multiple identities. Disability studies scholars have combined critical theories of race, gender, and disability in interesting ways, often with a focus on education and school discipline. A growing number of legal scholars have explored race and disability discrimination using different approaches. An intersectional scholarly approach focuses on the unique and compounded harms of oppression experienced by people who are members of two or more marginalized groups (e.g., a Black woman with a disability). Rather than addressing each marginalized identity separately, this approach employs critical theories to explore “how race and disability were co-constituted, informed and motivated by the intent to not only to uphold racial hierarchy/white supremacy, but also uphold the related racial project of ableism.” For example, scholars and advocates have engaged disability critical race theory (DisCrit) to explore unique disadvantages at the intersection of race and disability in education police encounters, prison litigation, immigration law, and employment discrimination. Less academic attention has been paid to the unique disadvantages at the intersection of race and disability in health care. This may be due in part to a lack of information and data. A 2019 report published by the National Academies, Compounded Disparities: Health Equity at the Intersection of Disability, Race, and Ethnicity, summarized the available evidence while noting that “research on health and health disparities at the intersection of disability and race/ethnicity is very limited.”

Here, we examine the unique disadvantages experienced by Black people and other people of color with SUD in health care, and argue that the intersectional approach we describe above to enforcement of disability rights laws offers an opportunity to ameliorate some of the harms of oppression to this population. Although disability rights law does not explicitly address intersectional discrimination, specific features of the laws are well-suited to address the particular forms of discrimination and disadvantage experienced by people of color with SUD. These laws extend to individuals who are excluded or denied health care services based on SUD, as well as individuals who are victims of widespread but incorrect and often racialized assumptions about SUD or stigma based on a past SUD. These laws consistently require individualized assessment based on objective medical or scientific evidence which has the potential to interrupt racial and ableist bias and assumptions related to SUD. Finally, disability laws can be used to challenge multiple modes of discrimination, including intentional discrimination, segregation, and failure to accommodate people, as well as policies and practices that have a disparate impact on people of color with SUD.

[. . .]

The compound disadvantages conferred upon people of color with disabilities by the function of structural, institutional, and individual discrimination is an area deserving of more scholarly attention. For people of color with SUD in health care settings, the structural forces of existing criminal, health care, and even disability nondiscrimination laws create profound disadvantages and barriers to humane and appropriate treatment. Nothing short of foundation changes in the criminal legal system, drug policy, and myriad other laws-- including removing the exclusion from protection disability nondiscrimination laws of those “currently using illegal drugs”--will afford justice to multiply marginalized people with SUD. In the interim, we have suggested that intersectionality-conscious and robust enforcement of existing protections in the ADA, Rehabilitation Act, Section 1557, and the CARES Act offer the best opportunity for just outcomes for people of color with SUD in health care.

Kelly K. Dineen, R.N., J.D., Ph.D.,is an Associate Professor of Law at Creighton University School of Law in Omaha, Nebraska, USA.

Elizabeth Pendo, J.D.,is the Joseph J. Simeone Professor of Law, Center for Health Law Studies, at Saint Louis University School of Law in Saint Louis, Missouri, USA.