This essay argues that feminist legal theory offers an important, and underutilized, perspective to examine health law and policy. We use several theoretical frameworks developed by feminist legal theorists including relational autonomy, intersectionality, vulnerability theory, and the feminist critique of the public-private divide to demonstrate the utility of these theories to health law analysis. These frameworks provide insights relevant not only to issues that obviously relate to gender, but also to matters of choice, quality, and access that are less obviously gender-related. We map three key areas of existing scholarship and future inquiry at the intersection of health law and feminist legal theory: (I) patient choice and relational autonomy, (II) patriarchy, power and patient safety, and (III) access to health care and healthy living conditions at the public-private divide. Uniting these areas of inquiry is a nagging question central to the relationship between critical legal scholarship (including feminist scholarship) and pragmatic action to combat injustice: Can we use legal rights to achieve our aims even as we recognize them as tainted tools that have propped up oppressive social structures? A feminist agenda for health law and policy must grapple with this dilemma.
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See, e.g., R.A.Williams, Jr., “Taking Rights Aggressively: The Perils and Promise of Critical Legal Theory for Peoples of Color,”Law & Inequality5, no. 1 (1987): 103-134 (describing critical legal theory). Although this essay focuses specifically on feminist legal theory (including intersectional and critical race feminism), we note that critical race theory offers another set of perspectives that health law scholars have used to propose solutions to health problems and inequities. For example, Derrick Bell, a pioneer in critical race theory, asserted that “the interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites.” See D.A.Bell, Jr., “Brown v. Board of Education and the Interest-Convergence Dilemma,”Harvard Law Review93, no. 3 (1980): 518-533, at 523. This contention is the basis of interest-convergence theory and has been applied to health law issues. See D.B.Matthew, Just Medicine: A Cure for Racial Inequality in American Health Care (New York: New York University Press, 2015): at 28; see also M.Crossley, “Black Health Matters: Disparities, Community Health, and Interest Convergence,”Michigan Journal of Race and Law22, no. 1 (2016): 53-100, at 59-60.
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There is much complexity in the term woman and how it is used. When we use the term woman throughout the article, this includes transgender men and others who may identify as a woman. See C.Strangio, “Can Reproductive Trans Bodies Exist?”City University of New York Law Review19, no. 1 (2016): 223-245, at 230-232.
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18.
See D.Dinner, “Strange Bedfellows at Work: Neomaternalism in the Making of Sex Discrimination Law,”Washington University Law Review91 (2014): 453-530, 458 (describing Fine-man's vulnerability analysis as “theorizing the privatization of dependency”).
19.
See Fineman, supra note 12.
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W.Kissick, Medicine's Dilemmas: Infinite Needs Versus Finite Resources (New Haven: Yale University Press, 1994), at 150 (describing the iron triangle of health care: cost, quality, and access); B.Furrowet al., eds., Health Law: Cases, Materials, and Problems, 8th ed. (Saint Paul: West, 2018), at 495 (“[H] ealth care systems are frequently evaluated on their ability to provide equitable access to quality health care at a reasonable price for the population. In the American health care system, we also highly prioritize the ability to have choice …?
21.
For a similar argument from a British health law scholar, see K.O'Donovan, “Is the Patient Position Inevitably Female?” Foreword to Feminist Perspectives on Health Care Law, in S.Sheldon and M.Thomson, eds. (London: Cavendish Publishing Ltd., 1998): at vii (arguing that “[f]eminist jurisprudence can “alter[] the way in which [health care law] is researched, taught and understood” in ways that are “not confined to the ‘reproductive ghetto,’ that is to issues of gender and physical differences, of particular female conditions, of uteri and ovaries.”).
22.
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23.
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26.
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J.Nedelsky, Law's Relations: A Relational Theory of Self, Autonomy, and Law (Oxford: Oxford University Press, 2011): at 5; C.Mackenzie and N.Stoljar, eds., Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (New York: Oxford University Press, 2000): at 5; J.Llewellyn and J.Downie, eds., in Being Relational: Reflections on Relational Theory and Health Law (Seattle: University of Washington Press, 2011): at 4. (“We can see the ways in which being in relationship is integral to self-understanding and to interactions with others at individual, collective, and even institutional levels.”)
28.
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P.Laufer-Ukeles, “Reproductive Choices and Informed Consent: Fetal Interests, Women's Identity, and Relational Autonomy,”American Journal Law & Medicine37, no. 4 (2011): 567-623, at 568-569 (“Based on the uniquely intertwined relationship between women and fetuses during gestation, and the importance of reproduction to women's identity, the individualistic, narrow informed consent doctrine is unsuited to support women's autonomy in the context of reproductive choices.”)
32.
Id., at 573.
33.
Id., at 571 (“Based on the uniquely intertwined relationship between women and fetuses during gestation, and the importance of reproduction to women's identity, the individualistic, narrow informed consent doctrine is unsuited to support women's autonomy in the context of reproductive choices.”)
34.
See S.M.Suter, “The ‘Repugnance’ Lens of Gonzales v. Car-hart and Other Theories of Reproductive Rights: Evaluating Advanced Reproductive Technologies,”George Washington Law Review76, no. 6 (2008): 1514-1598, at 1593 (“… a richer notion of self-definition (and the autonomy or decisional privacy interests that derive from this conception) requires us to think of the self in relation to family, friends, and community.”); see alsoS.Mohapatra, “Using Egg Freezing to Extend the Biological Clock: Fertility Insurance or False Hope?”Harvard Law and Policy Review, 8, no. 2 (2014): 381-411, at 409 (“When a woman chooses to freeze her eggs, the choice may not be truly autonomous if she is doing it because of constraints she faces at work, with family life, or with childcare. If having a child earlier means that she will take a step back in her career or not have enough money for child care due to a lack of support at home and lack of affordable child care options, then a woman may not be exercising autonomy by delaying motherhood. Instead, she may feel like this is choosing the best of many bad options.”)
35.
J.Llewellyn, “A Healthy Conception of Rights? Thinking Relationally about Rights in a Health Care Context,” in J.Downie and E.Gibson, eds., Health Law At The Supreme Court of Canada (Toronto: Irwin Law Inc., 2007): at 57.
36.
M.S.Wright, “End of Life and Autonomy: The Case for Relational Nudges in End-of-Life Decision-Making Law and Policy,”Maryland Law Review77, no. 4 (2018): 1061-1141, at 1093-1094 (“Coupled with the reality that most people never make decisions without the participation of others, feminist philosophers, bioethicists, and critical disability scholars have thus advanced the concept of “relational autonomy.” Importantly, relational autonomy is autonomy, just conceptualized in a way that accords with social reality.”) Internal quotations omitted; L.H.Igel and B.H.Lerner, “Moving Past Individual and ‘Pure’ Autonomy: The Rise of Family-Centered Patient Care,”American Medical Association Journal of Ethics18, no.1 (2016): 56-62, at 58; A.Ho, “Relational Autonomy or Undue Pressure? Family's Role in Medical Decision-Making,”Scandinavian Journal of Caring Sciences22, no. 1 (2008): 128-135, at 131 (“… our self is constituted to an important degree by relations with and responsibilities towards our intimates, and these relations and the welfare of our loved ones may be more significant than the interests of any individual self in isolation.”)
37.
J.Downie and J.Lllewellyn, “Relational Theory and Health Law and Policy,”Health Law Journal193, Special Edition (2008): 193-210, at 197.
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Id., at 198.
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41.
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42.
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43.
K.Gallo and L.Smith, “Meeting Tomorrow's Healthcare Needs: Teamwork Trumps Autonomy,”Nursing Education Perspectives31, no. 4 (2010): 207 at 207.
44.
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46.
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47.
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48.
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49.
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G.Shannonet al., “Gender Equality in Science, Medicine, and Global Health: Where Are We At And Why Does It Matter?”The Lancet, 393, no. 10171 (2019): 560-569, at 566.
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Id., at 566 (“A study investigating mortality of female patients with acute myocardial infarction found higher mortality in women treated by male doctors than in those treated by female doctors. The effect was attenuated if male doctors had higher exposure to female patients and physician colleagues.”)
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L.C.Ikemoto, “Racial Disparities in Health Care and Cultural Competency,”St. Louis University Law Journal48, no. 3 (2003): 75-131, at 82; see also, S.A.Law, “A Consumer Perspective on Medical Malpractice, Law and Contemporary Problems,”Law and Contemporary Problems49, no. 2 (1986): 305-326, at 314 (“Doctors, nurses, and other health care workers…are divided by hierarchical organizational structures. It is difficult to develop relationships of mutual respect, sharing, and criticism between physicians who are generally white, male, and affluent, and the people, often nonwhite women, who provide most ‘hands-on’ patient care in the hospital.”)
54.
See K.Davies, “The Body and Doing Gender: The Relations between Doctors and Nurses in Hospital Work,”Sociology of Health & Illness25, no. 7 (2003): 720-742; C.West, “When the Doctor Is a “Lady”: Power, Status and Gender in Physician-Patient Encounters,”Symbolic Interaction7, no. 1 (1984): 87-106; J.Cassell, “Doing Gender, Doing Surgery: Women Surgeons in a Man's Profession,”Human Organization56, no. 1 (1997): 47-52; N.Tabassum and A.Chiesi, “Doing and Undoing Gender in the Hospital Workplace,”Journal of Interdisciplinary Feminist Thought10, no. 1 (2017): 1-23, at 15.
55.
See supra note 54 (Tabassum and Chiesi), at 10.
56.
M.Crossley, “Infected Judgment: Legal Responses to Physician Bias,”Villanova Law Review48, no. 1 (2017): 195-324, at 302-303 (“Published studies suggest that bias based on a clinically irrelevant characteristic of a patient at times influences some physicians' medical judgments. These biased medical decisions can have adverse impacts on the particular patient who is the victim of the biased decision, as well as on the public's health more broadly.”)
57.
P.T.Hoope-Bender, et al., “Improvement of Maternal and Newborn Health through Midwifery,”The Lancet384, no. 9949 (2014): 1226-1235.
58.
E. R.Declercqet al., “Serving Women in Need: Nurse-Midwifery Practice in the United States,”Journal of Midwifery & Women's Health46, no. 1 (2011): 11-16, at 13.
59.
S.H.Suarez, “Midwifery Is Not the Practice of Medicine,”Yale Journal of Law & Feminism5, no. 2 (1992): 315-364, at 315.
60.
B.N.Greenwood, S.Carnahan, and L.Wang, “Patient-Physician Gender Concordance and Increased Mortality among Female Heart Attack Patients,”Proceedings of the National Academy of Science115, no. 34 (2018): 8569-8574.
61.
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62.
R.Prokhovnik, “Public and Private Citizenship: From Gender Invisibility to Feminist Inclusiveness,”Feminist Review60, no. 3 (1998): 84-104, at 87.
63.
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64.
See Fineman, supra note 12.
65.
D.Stone, “The Struggle for the Soul of Health Insurance,”Journal of Health Politics, Policy and Law18, no. 2 (1993): 287-317, at 289 (contrasted the principle of mutual aid, whereby “sickness is widely accepted as a condition that should trigger mutual aid,” and the principle of actuarial fairness, which holds that “each person should pay for his own risk.”); A.Gluck and N.Huberfeld, “What Is Federalism in Health Care For?”Stanford Law Review70, no. 6 (2018): 1689-1803, at 1698 (although the ACA “pushed the needle toward solidarity by enacting policies aimed at universal coverage,” health law “remains caught in centuries-old, unresolved tension between the so-called ‘social solidarity’ model … and the ‘individual responsibility’ model.”); E. McCuskey, supra note 7, at 310 (“Health reform movements of late suffer from that tension, but tilt definitively toward social solidarity and recognition of social determinants.”)
66.
See McCuskey, supra note 7, at 315.
67.
S.L.Waysdorf, “Fighting for Their Lives: Women, Poverty, and the Historical Role of United States Law in Shaping Access to Women's Health Care,”Kentucky Law Journal84, no. 4 (1996): 745-826.
68.
See, e.g., N.Huberfeld and J.L.Roberts, “Health Care and the Myth of Self-Reliance,”Boston College Law Review57, no. 1 (2016): 1-60, at 3 (“The ACA reversed [the] norm [of exclusion in health care], espousing a principle of inclusion or “universality” by facilitating universal health insurance coverage.”); cf. G.R.Majette, “Global Health Law Norms and the PPACA Framework to Eliminate Health Disparities,”Howard Law Journal55, no. 3 (2012): 887-936, at 892. (“[The ACA] constitutes framework legislation that complies with global health law norms protecting a right to health in its approach to the reduction of health care disparities for racial and ethnic minorities in the United States.”)
See, e.g., V.L.MacDougall, “Medical Gender Bias and Managed Care,”Oklahoma City University Law Review27, no. 3 (2002): 781-910; T. F.Theodos, “The Patient's Bill of Rights: Women's Rights Under Managed Care and ERISA Preemption,”American Journal of Law & Medicine26, no. 1 (2000): 89-108; M.Oberman and M.Schaps, “Women's Health and Managed Care,”Tennessee Law Review65, no. 2 (1998): 555-583.
72.
See MacDougall, supra note 71.
73.
See, e.g., M.A.Fineman, “The Vulnerable Subject and the Responsive State,”Emory Law Journal60, no. 2 (2010): 251-275, at 266; M.A.Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition,”Yale Journal of Law & Feminism20, no. 1 (2008): 1-23.
74.
A.Ahmed, “‘Rugged Vaginas’ and ‘Vulnerable Rectums’: The Sexual Identity, Epidemiology, and Law of the Global HIV Epidemic,”Columbia Journal of Gender and Law26, no. 1 (2013): 1-57, at 49 (“Martha Fineman argues that instead of an identity-based legal reform project we should instead focus on the construction of a new liberal subject based on an appreciation of the human condition in order to effectively displace the rhetoric of personal responsibility, small government, and condemnation of state intervention.”)
75.
N.A.Kohn, “Vulnerability Theory and the Role of Government,”Yale Journal of Law & Feminism26, no. 1 (2014): 1-27, at 13 (critiquing the application of vulnerability theory in elder care but noting that “vulnerability theory helps us understand why we might favor laws that provide broad-based social support and why we might be concerned about selectively allocating resources based on group identity.”)
76.
See S.M.Stephens, “Freedom from Religion: A Vulnerability Theory Approach to Restricting Conscience Exemptions in Reproductive Healthcare,”Yale Journal of Law & Feminism29, no. 1 (2017): 93-121, at 106 (“ [T]he healthcare industry is not regulated in a way that ensures access to healthcare resources that will improve human resiliency. To the contrary, the state of the law actually discourages access to critical reproductive care that can improve not only individual health outcomes but broader social and economic outcomes for patients, their families, and, in turn, their wider communities.”)
77.
M.A.Fineman, “Vulnerability and Inevitable Inequality,”Oslo Law Review4, no. 3 (2017): 133-149; see also, Fineman, supra note 11.
78.
Id.
79.
See Huberfeld and Roberts, supra note 68, at 1.
80.
M.B.Lawrence, “Against the Safety Net,”Florida Law Review72, no. 1 (forthcoming 2020).
81.
A. K.Hoffman, “Reimagining the Risk of Long-Term Care,”Yale Journal of Health Policy, Law & Ethics16, no. 2 (2016): 239-315.
82.
See, e.g., M.Bobinski, “Women and HIV: A Gender-Based Analysis of a Disease and its Legal Regulation,”Texas Journal of Women and the Law3, no. 1 (1994): 7-56; A.Ahmed, “Feminism, Power, and Sex Work in the Context of HIV/AIDS: Consequences for Women's Health,”Harvard Journal of Law & Gender34, no. 1 (2011): 225-258.
83.
See, e.g., K.H.Koo and S.Maguen, “Military Sexual Trauma and Mental Health Diagnoses in Female Veterans Returning from Afghanistan and Iraq: Barriers and Facilitators to Veterans affairs Care,”Hastings Women's Law Journal25, no. 1 (2014): 27-38.
84.
See, e.g., K.D.Arnold, “The Right to Live: A Constitutional Argument for Mandatory Preventative Health Care for Female Prisoners,”William and Mary Journal of Women and the Law10, no. 2 (2004): 343-366; K.Weatherhead, “Cruel But Not Unusual Punishment: The Failure to Provide Adequate Medical Treatment to Female Prisoners in the United States,”Health Matrix: Journal of Law-Medicine13, no. 2 (2003): 429-472; C.Chandler, “Death and Dying in America: The Prison Industrial Complex's Impact on Women's Health,”Berkeley Women's Law Journal18, no. 1 (2003): 40-60.
85.
M.D.Makhlouf, “Health Justice for Immigrants,”University of Pennsylvania Journal of Law and Public affairs4, no. 2 (2019): 235-311.
86.
See, e.g., N.Daniels, “Treatment and Prevention: What Do We Owe Each Other?” in Prevention vs. Treatment: What's the Right Balance? (Oxford: Oxford Univ. Press, 2011): 176-193, at 176 (“I … argue that we have a robust social obligation to protect and promote health and that this obligation means we owe each other a reasonable array of both preventive and curative interventions.”)
87.
R.Rebouché, “Reproducing Rights: The Intersection of Reproductive Justice and Human Rights,”University of California Irvine Law Review7, no. 3 (2017): 579-610, at 593; V.Blake, “It's an ART not a Science: State-Mandated Insurance Coverage of Assisted Reproductive Technologies and Legal Implications for Gay and Unmarried Persons,”Minnesota Journal of Law, Science, and Technology12, no. 2 (2011): 651-713, at 678; S.Mohapatra, “Politically Correct Eugenics,”Florida International University Law Review12, no. 1 (2016): 51-80 (applying a reproductive justice lens to issues related to reproductive technologies such as CRISPR and suggesting cost and access to such technologies may exacerbate disparities); S.Mohapatra, “Fertility Preservation for Medical Reasons and Reproductive Justice,”Harvard Journal of Racial and Ethnic Justice30 (2014): 601-633 (applying a reproductive justice lens to fertility preservation for cancer patients and arguing for the necessity for insurance coverage for such patients).
88.
S.A.Tovino, “Scientific Understandings of Postpartum Illness: Improving Health Law and Policy?”Harvard Journal of Law & Gender33, no. 1 (2010): 99-173.
89.
See, e.g., K.Faloon and P.M.Rosoff, “Who Pays? Mandated Insurance Coverage for Assisted Reproductive Technology,”American Medical Association Journal of Ethics16, no. 1 (2014): 63-69 (surveying existing literature debating whether infertility treatments should be financed collectively through private insurance mandates and public programs).
90.
See Daniels, supra note 86, at 176.
91.
Id., at 177.
92.
See L.Wiley, “The Struggle for the Soul of Public Health,”Journal of Health Politics, Policy, & Law41, no. 6 (2016): 1147-1160, at 1149 (“The powerful resonance of “personal responsibility” indicates deep-seeded antagonism to understanding health as socially determined, to acting collectively in response to health threats, and to communitarian rationales for doing so. When health is viewed primarily as an individual, personal matter, the realm that is properly designated for ‘public’ concern is naturally understood to be narrowly defined.”)
93.
See, e.g., I.T.Winkler and V.Roaf, “Taking the Bloody Linen Out of the Closet: Menstrual Hygiene as a Priority for Achieving Gender Equality,”Cardozo Journal of Law & Gender21, no. 1 (2014): 1-37.
94.
Cf. T.M.Pope, “The Slow Transition of U.S. Law Toward a Greater Emphasis on Prevention,” in H.S.Faust and P.T.Menzel, eds., Prevention vs. Treatment: What's the Right Balance? (Oxford: Oxford University Press, 2011): 219-244.
95.
Wiley, supra note 92.
96.
Cf. W.A.Rogers, “Feminism and Public Health Ethics,”Journal of Medical Ethics32, no. 6 (2006): 351-354, at 351 (“[Some public health activities raise] significant questions about autonomy, paternalism, and the regulation of bodies with potentially ‘dangerous’ features (breasts, cervixes, pregnant uteruses, adipose tissue) … [M]any of the preventive aspects of public health[, which are subject to paternalistic intervention] — for example, diet, personal hygiene, or childhood exercise — are activities that are traditionally mediated through the actions of women as family carers and custodians of health and wellbeing.”); W.E.Parmet, “Beyond Privacy: A Population Approach to Reproductive Rights,” in J.G.Culhane, ed., Reconsidering Law and Policy Debates: A Public Health Perspective (Cambridge: Cambridge U. Press, 2010): at 15-39 (exploring how each side in the reproductive rights debate has employed public health arguments and the impact of those arguments on the courts' recognition of reproductive rights); S.Burris, “Law and the Social Risk of Health Care: Lessons from HIV Testing,”Albany Law Review61, no. 3 (1997): 831-896, at 835-836 (arguing for the application of existing disability, privacy, confidentiality, and informed consent laws — as well as the adoption of new legal frameworks specific to HIV/AIDS — “to protect people with HIV from discrimination … and … [to] protect medical privacy and limit HIV testing in the absence of informed consent.”).
97.
See Rogers, supra note 89, at 351 (“A feminist approach to health inequities leads us to examine the connections between disadvantage and health, and the distribution of power in the process of public health, using gender as an analytic category.”)
98.
See, e.g., C. M.Flood and A.Gross, eds., The Right to Health at the Public/Private Divide: A Global Comparative Study (Cambridge: Cambridge Univ. Press, 2014): at 1 (“Does a right to health care serve to advance greater equity or does it in fact advance the opposite result? Does the recognition of a right to health care help sustain public values (like equality) in systems that are undergoing privatization? Or, to the contrary, does a focus on rights-based norms foster individualism and exacerbate inequalities brought about by privatization? … How do courts balance the rights of an individual against collective needs in the distribution of health care?”)
