Govind Persad, JD, PhD
A health disparity is typically defined as involving a differential in health outcomes between some groups of patients and other groups, for example, between White and Black patients, in which some groups fare better than others. Health inequities are commonly defined as health differences that are unjust or unfair.1 (The term “disparity” is sometimes used merely to refer to differential outcomes but is also sometimes used to refer to inequitable differential outcomes.)
A difference in health outcomes may be unjust or unfair if it tracks patterns of preexisting social advantage or disadvantage. For instance, the
incidence of certain cancers is associated with various background causes, including exposure to environmental health risks, such as particulate pollution.2 These environmental health risks are, in turn, associated with economic disadvantage and with subjection to racism and segregation.3 This pattern of causation exemplifies health inequity.
Some Health Differences Are Not Health Disparities
Some differences in health outcomes, however, may not be unjust or unfair because they track factors that do not stem from preexisting social disadvantage or do not exacerbate such disadvantage. For instance, men tend to have shorter life expectancies than women and are more vulnerable to certain types of cancers.4 These sex-correlated health differences are important for diagnosis and recommendations, but they do not constitute health inequities, at least in cases where they do not stem from social injustice.
Similarly, certain types of cancer are more common the older a patient is. Again, this age-correlated difference is important to recognize for diagnosis and recommendations, such as cancer screenings, but it is not typically regarded as a health inequity. It would not be preferable, for instance, if population-level cancer prevalence remained unaltered but was no longer associated with age. According to the disparity expert Paula Braveman, MD, MPH, Founding Director of the Center for Health Equity at the University of California, San Francisco: “Worse health among the elderly compared with young adults” is an example of “health differences that are not health disparities.”5
Lastly, patients with cancer and those who have had cancer often tend to be more vulnerable to disadvantageous health outcomes beyond the fact of cancer itself. In some cases, this can be the result of social injustice, such as employment discrimination, and then it would constitute a health inequity. However, in other cases, this may be the result of direct medical effects of cancer and is then a health difference that remains important to prevent but not a health inequity stemming from social injustice.
Addressing Health Disparities
In many cases, health disparities stem from broader societal factors, rather than from causes within the direct control of oncologists. In this respect, health disparities are akin to the societal and environmental causes of cancer itself, which are typically outside oncologists’ direct control. Yet just as oncologists can take steps to try to mitigate the harms that stem from these societal and environmental causes, oncologists can also usefully draw on recent research to attempt to narrow inequitable health disparities during cancer care.
Oncologists working at a systems level can try to identify factors that may be maintaining or exacerbating health disparities in cancer incidence and outcomes. These factors may include the location of available practices,6 access to screening, and whether patients are reliably connected to primary care providers who may be able to refer them for needed treatment.
At the level of individual practices, oncologists may be able to reduce health disparities by reducing barriers to care access. These barriers may include formal barriers, such as the exclusion of some providers from insurance plans that cover disadvantaged patients, or providers’ unwillingness to accept payment from programs that provide health coverage to people with limited income, such as Medicaid.7 They may also include less-formal barriers, such as underdeveloped competence in communicating with patients from marginalized or disadvantaged communities.
Confronting the Legal Implications
Are there legal obstacles to addressing health disparities? Alleviation of health disparities is recognized as a legitimate purpose by federal agencies,8 so it should be legally acceptable to take steps to address these disparities.
In practice, legal obstacles are likely to depend on whether the programs at issue classify patients according to legally protected characteristics, such as race and ethnicity or sex/gender. When government action or funding is used to classify patients along these lines, heightened legal scrutiny applies.9 In contrast, programs that aim to reduce health disparities without classifying patients along these lines are likely to face fewer legal obstacles. For example, ensuring that providers accept Medicaid payments is likely to reduce racial disparities and would present no legal issues.
The same is true for ensuring that providers are trained in culturally competent communication, especially with patients from marginalized communities, as well as providing interpreter services when needed to optimize the patient-clinician relationship. In contrast, a program that specifically classifies patients by race to determine who is prioritized for certain services could present more potential legal issues.
Some of these issues may be clarified further depending on the Supreme Court’s decision in the upcoming case of Students for Fair Admissions Inc. v President & Fellows of Harvard College and the parallel case involving the University of North Carolina. Although these cases concern the use of racial classifications in educational admissions rather than medicine, they may have implications for medicine as well.
Another promising approach that appears on sound legal footing is the use of disadvantage indices.10 For example, patients who live in census tracts or zip codes that are more disadvantaged, where disadvantage is measured using a multidimensional index that looks at factors such as income and segregation, might receive outreach efforts for interventions, including cancer screenings. These approaches have been used in public health contexts and are worth considering for systems-level cancer care efforts.
Conclusion
Addressing health disparities is an increasingly important priority for policymakers and the American public. Oncologists can play an important role in helping to address these disparities as part of cancer care and should stay abreast of developments in health disparity research as well as in the law. This column has tried to explain aspects of both.
DISCLOSURE: Dr. Persad has received grant funding from the Greenwall Foundation.
Dr. Persad is Assistant Professor at the University of Denver Sturm College of Law and Greenwall Foundation Faculty Scholar in Bioethics.
REFERENCES
1. Braveman P: Health disparities and health equity: Concepts and measurement. Annu Rev Public Health 27:167-194, 2006.
2. Wu S, Powers S, Zhu W, et al: Substantial contribution of extrinsic risk factors to cancer development. Nature 529:43-47, 2016.
3. Zavala VA, Bracci PM, Carethers JM, et al: Cancer health disparities in racial/ethnic minorities in the United States. Br J Cancer 124:315-332, 2021.
4. Radkiewicz C, Dickman PW, Johansson AL, et al: Sex and survival in non-small cell lung cancer: A nationwide cohort study. PloS One 14:e0219206, 2019.
5. Braveman P: What are health disparities and health equity? We need to be clear. Public Health Rep 129(suppl 2):5-8; 2014.
6. Villanueva C, Chang J, Bartell SM, et al: Contribution of geographic location to disparities in ovarian cancer treatment. J Natl Compr Cancer Netw 17:1318-1329, 2019.
7. Bodurtha Smith AJ, Pena D, Ko E: Insurance-mediated disparities in gynecologic oncology care. Obstet Gynecol 139:305-312, 2022.
8. National Cancer Institute: Cancer disparities. March 28, 2022. Available at www.cancer.gov/about-cancer/understanding/disparities. Accessed March 21, 2023.
9. Persad G: Allocating medicine fairly in an unfair pandemic. U. Ill. L. Rev. 2021:1085, 2021.
10. Doiphode A: Disadvantage indices: A tool for understanding and addressing unmet social needs. Available at https://policylab.chop.edu/blog/disadvantage-indices-tool-understanding-and-addressing-unmet-social-needs. Accessed March 21, 2023.
Editor’s Note: The Law and Ethics in Oncology column is meant to provide general information about legal topics, not legal advice. The law is complex, varying from state to state, and each factual situation is different. Readers are advised to seek advice from their own attorney.
Disclaimer: This commentary represents the views of the author and may not necessarily reflect the views of ASCO or The ASCO Post.
