Joanna K. Weinberg, JD, LLM, Associate Adjunct Professor of Health Law, Policy and Ethics, UC San Francisco- Department of Social and Behavioral Sciences, Box 0646 Laurel Heights Suite 340, San Francisco, CA 94118, 415-502-5204, weinbgj@itsa.ucsf.ed

In two landmark rulings in June 2003, the US Supreme Court upheld the use of certain types of affirmative action higher education admissions policies, at the same time rejecting the use of a formula-based system which arbitrarily assigned points to selected minority applicants. The two cases -- Grutter v Bollinger and Gratz v Bollinger -- involved affirmative action in higher education. Since the 1960’s, however, the use of affirmative remedies has been addressed in a much broader range of concerns, with the (relatively recent) proviso that any “race-conscious” affirmative must be narrowly tailored to fulfill a “compelling government interest,” although until the 2003 decision, the areas in which affirmative action remedies were permissible had gradually eroded.

This paper examines how the Supreme Court’s 2003 decisions, and whether a limited, targeted form of affirmative action might be used to fashion new mechanism to support efforts to reduce health disparities. Racial and ethnically-based disparities in access, quality and availability of health care services is well documented, and has had a significant impact on health outcomes. The Supreme Court’s limited endorsement of affirmative action may provide a tool for more direct affirmative efforts to be incorporated into policy design and implementation in the health care arena than has been done in the past, for example, targeting specific populations for additional care or screening for existing disparities. The paper considers whether implementation of appropriate, “narrowly tailored” measures would meet the requirements that the Court has most recently enunciated.

Learning Objectives:

(
• To educate participants in the specific provisions of the US Supreme Court’s 2003 affirmative Action cases; (
• To inform participants of the growing racial and ethnic disparities in access to, availability of and quality of health care in the US; and (
• To engage in a critical discussion as to whether affirmative action is a viable remedy to begin to overcome health disparities.

Keywords: Affirmative Action, Health Care Access

Presenting author's disclosure statement:
I do not have any significant financial interest/arrangement or affiliation with any organization/institution whose products or services are being discussed in this session.