Governmental responses to the Covid 19 pandemic—in
the United States, the United Kingdom, and elsewhere—have been deeply
inequitable. People of color and people living in low-income households and
neighborhoods have experienced compounded pandemic impacts. Restrictions on
public services and private activities have disproportionately affected
employment, housing, and financial security for women, people of color, and
people with low socioeconomic status. The severe illnesses and deaths from COVID
19 that restrictions have failed to prevent have been disproportionately
concentrated among people of color and people living in low-income communities.
Shortly before the pandemic began, we called on health
law scholars to engage more deeply with feminist legal theory and mapped key
areas of existing scholarship and future inquiry at the intersection of health
law and feminist legal theory. Our forthcoming edited volume, Feminist Judgments: Rewritten Health Law Opinions,
furthers this agenda by demonstrating how incorporating
feminist theories and methods into adjudication of health law disputes creates
new space for more equitable, responsive, and fully informed judicial decision-making.
In
the volume, authors draw from several theoretical frameworks developed by
feminist legal theorists, including relational autonomy, intersectionality, vulnerability
theory, feminist critiques of the public-private divide, and the ethic of care.
These frameworks are apt for
application to pandemic response. Indeed, the strategies we’ve urged
governments to adopt over the last 14 months (together and withothercoauthors) are grounded in feminist legal theory
and critical race feminism.
For example, vulnerability
theory (which several authors in the Feminist
Judgment volume have relied on to inform their critiques of historical and
recent court opinions) emphasizes how vulnerability is an inevitable and
universal aspect of the human condition. We are all universally and inevitably
dependent on a responsive state to support the resources necessary for
resilience. The COVID 19 pandemic has
laid bare our vulnerability, and in many countries, the governmental response has
failed to provide the necessary support for people to protect themselves, their
loved ones, and their communities from infection. A responsive state would have
provided adequate personal protective equipment, testing, treatment, and
vaccination opportunities, and financial support for people affected by
business restrictions.
Feminist critiques of the
public-private divide feature prominently in the commentaries that appear in Feminist Judgements and are particularly
useful for understanding failed governmental responses to the pandemic. Governments
have urged individuals to take personal responsibility for complying with
public health guidelines to stay home, wear masks, get tested, and get
vaccinated, without honoring governmental responsibilities to provide public
supports to enable these pro-social behaviors. Although governments have
provided some public support for COVID 19 testing and vaccination, unemployment
and business assistance, and paid sick leave, these supports have been woefully
inadequate to meet dire needs. Most of the costs of mitigating the pandemic and
coping with societal disruption have been shifted from the public fisc to
private individuals and households, with predictably inequitable results.
A mutual aid model that embraces social
solidarity and the ethic of care (an important aspect of feminist approaches to
health law and policy) would ensure that everyone is able to abide by and
benefit from public health guidance. Interest among lawmakers in so-called
vaccine passports, which would allow the vaccinated access to privileges such
as travel and leisure activities, could threaten social solidarity. Even within
the United States, where the vaccine roll-out has been relatively fast due to
government coordination of supply chains for raw materials and procurement of
vaccine dose, access to vaccination is still dependent on ability to take time
off from work and use private transportation to access government-run
vaccination sites. Data suggests that people in racially segregated areas have
had less access to vaccinations, just as they have had less access to virus
testing. Additionally, people with disabilities have had difficulty physically
getting to vaccination sites and have largely been overlooked in the
vaccination campaign. Inequities between nations are even more stark.
The COVID 19 pandemic has revealed what feminist health law scholars have known for a long time: that social factors determine health outcomes. Black, Latinx, and indigenous people have had higher infection, hospitalization, and death rates from COVID 19 and lower COVID 19 vaccination rates. These differences are largely due to structural determinants like discrimination and poverty that cause disparities in intermediate determinants such as housing, employment, health care access and treatment, and education. A responsive state, built on a framework of universal vulnerability, mutual aid, and the ethic of care, would have ensured that all individuals in society had the support needed to prevent socially-produced disparities in COVID 19 outcomes. These principles, pioneered by feminist scholars, would help ensure that we do not leave anyone in society behind as we reconstruct our post-pandemic world and as we prepare for future public health emergencies.
Professor Seema Mohapatra is currently a visiting associate professor of law at FAMU College of Law for the 2020-2021 academic year while on leave from her tenured faculty position at Indiana University Robert H. McKinney School of Law in Indianapolis, Indiana. She is an Orlando native who has taught a wide variety of courses focusing mostly in the...
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