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

• Author: Burris, Scott C.

INTRODUCTION I. SOCIAL DETERMINANTS OF HEALTH II. FINDING LAW IN THE SOCIAL PRODUCTION OF HEALTH III. DEFINING A ROLE FOR PUBLIC HEALTH LAW RESEARCH CONCLUSION INTRODUCTION

Research over the past three decades has demonstrated that population health is shaped powerfully by "[t]he contexts in which people live, learn, work, and play" (1)--also called "social determinants of health" or "fundamental social causes of disease." (2) The World Health Organization (WHO), (3) the Centers for Disease Control and Prevention (CDC), (4) and the Robert Wood Johnson Foundation (RWJF), (5) have all launched major initiatives aimed at addressing the social influences on health. Neither the research nor the calls for action, however, have penetrated common knowledge, as a recent RWJF report recounts:

Americans, including opinion elites, do not spontaneously consider social influences on health. They tend to think about health and illness in medical terms, as something that starts at the doctor's office, the hospital, or the pharmacy. They recognize the impact of health care on health, and spontaneously recognize the importance of prevention, but they do not tend to think of social factors that impact health. They do, however, recognize social factors and see their importance when primed. Raising awareness of social factors is not difficult, although people more readily recognize voluntary behaviors that cause illness (e.g., smoking, overeating) than arbitrary or social factors (e.g., race, ethnicity, income). (6) In these tendencies, health lawyers may not differ from everyone else. Even health lawyers who are attuned to the social determinants of health--a phrase, by the way, that this RWJF report advises is just too wonky for general public consumption (7)--often do not find themselves in a position to actively address them in their research. Yet even as health lawyers and health care policy experts celebrate the enactment of the Patient Protection and Affordable Care Act (8)--a landmark policy achievement, no matter its ultimate fate--we have at least two good reasons to keep social determinants in mind: first, the relatively dismal state of population health in the United States is not caused primarily by a lack of health care, and second, even universal health care access will not make us substantially healthier as a society. Health care is a huge part of the American economy and undeniably a public good, but the stakes are too high for the public--and health law scholars--to continue neglecting the robust social structures that are shaping America's well-being. Compared to other countries with our resources, and even some countries without them, we are doing poorly, and it is well past time we all got sick of it.

This Article, invited to help provide a public health context to this Symposium, begins with a brief summary of key points from social epidemiology--the study of the social determinants of health. It then discusses how law fits into the picture and, more particularly, how public health law research (PHLR) can contribute to identifying and ameliorating social causes of the country's relatively poor level and distribution of health.

1. SOCIAL DETERMINANTS OF HEALTH

   For the visual learner, the workings of the social determinants of health are neatly expressed in Figure 1, (9) which depicts the relationship between family income and life expectancy.

   The relationship is simple: the greater the family income, the longer the life, creating a stepwise climb towards the healthier, wealthier side of the picture. This is what social epidemiologists usually refer to as "the gradient"--the tendency of health outcomes to line up on a steady slope from the have-leasts to the have-mosts. First identified in a famous study of the health of British civil servants, (11) the gradient turns up reliably at the intersection of social status (whether measured by wealth, income, education, or other common proxies) and virtually any health or social pathology you could name. (12) In the United States, discussion of inequitable health outcomes has largely focused on racial disparities. (13) These widespread differences in health outcomes by race are an instance of health inequality, but only that. Because we so rarely collect statistics or conduct analysis by class in this country, we have largely treated the health inequality problem as solely one of race for policy purposes. It is not. Race and class both are at work here. (14)

   The gradient also appears in population-level analyses of the relationship between social inequality and a wide range of health and social outcomes (crime rates, educational performance, etc.). It turns out that both U.S. states and the countries of the world line up along the gradient when their levels of social inequality are plotted against their respective health and social problems; as inequality within a state or country increases, so too does the severity of a country's or state's health and social problems. (15) A rising tide may lift all boats, but the choppy waters of inequality make the sailing tougher for everyone: even the best-off in an unequal society tend to be worse off than the average person in a more equal one. Thus, the richest Americans do not live as long as the richest Swedes and Japanese. This can help explain the fundamental health care policy anomaly in the U.S. system: why we are number one in health care spending and number thirty in health outcomes. Inequality evidently pulls everyone down.

   The social production of health is sufficiently complex to preclude simple causal attributions. No one is arguing that inequality directly causes ill health or other pathological social outcomes. Yet consistent correlations across populations between health and various forms of social and economic inequality leave little room for doubt that social arrangements account for an important fraction of population health. Efforts to find the mechanisms of these effects are ongoing. A recent book by sociologists Richard Wilkinson and Kate Pickett provides many examples of more or less well-founded causal hypotheses. For example, they suggest that the relationship between inequality and homicide (which appears both between countries and among U.S. states) can be explained at least in part by the imperative among young men to gain social status in environments that offer few other means of doing so. (16) Social epidemiologists have studied the effect of social position over the life course, pointing to the powerful effects of early childhood deprivation on lifetime health. (17) Bruce Link and Jo Phelan have conceived of the process in terms of access to the basic resources people need to thrive, (18) while others, more biologically inclined, have documented the powerful role of stress across the life course in connecting social position to health outcomes. (19) The WHO Commission on the Social Determinants of Health sums up social determinants and their workings in holistic terms:

   The poor health of the poor, the social gradient in health within countries, and the marked health inequities between countries are caused by the unequal distribution of power, income, goods, and services, globally and nationally, the consequent unfairness in the immediate, visible circumstances of peoples [sic] lives--their access to health care, schools, and education, their conditions of work and leisure, their homes, communities, towns, or cities--and their chances of leading a flourishing life. This unequal distribution of health-damaging experiences is not in any sense a 'natural' phenomenon but is the result of a toxic combination of poor social policies and programmes, unfair economic arrangements, and bad politics. Together, the structural determinants and conditions of daily life constitute the social determinants of health and are responsible for a major part of health inequities between and within countries. (20) Responding to the findings of this social epidemiology is perhaps the true "grand challenge" of our time in public health. Whether or not it is grand, it is certainly difficult, in terms of both research and implementation. I turn next to a public health law research perspective on practical efforts to address the social determinants of health and how law and legal research can best support the effort. I distinguish two relationships between law and social determinants and suggest--via a quick tour through the work of the epidemiologist Geoffrey Rose--the important role of public health law research in raising awareness of social factors and showing how law transforms social structures into levels and distributions of health. Of course, this is epidemiology coming from a lawyer, so caveat emptor!

2. FINDING LAW IN THE SOCIAL PRODUCTION OF HEALTH

   "The law is all over." (21) I take this phrase from a classic work of socio-legal research, which in turn is quoting a man's description of navigating the welfare system: wherever he goes, rules and officials shape his entire experience with the system. (22) Law for this man--and for all of us--is not just a distant set of "laws on the books" in Washington, D.C., but the institutions and practices that implement the law every day "on the streets." (23) It is not just the formal rules of the welfare system, but how these rules are enacted every day in welfare offices by case workers--and clients--who have their own understandings of what the law is, how it relates to other sets of rules, and how it can advance or hinder their own goals. Those of us trained as lawyers probably know this in our bones, but in my experience, health researchers do not widely share a sense of law as a field of social practice. This is important to keep in mind in looking at a depiction of the levels of policy intervention in health that...