Fifteen Eighty Four

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 with other coauthors) 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.

Feminist Judgments: Rewritten Health Law Opinions is forthcoming from Cambridge and a part of the the Feminist Judgments series. Explore the full series,edited by Bridget J. Crawford, Kathryn M. Stanchi, & Linda L. Berger.