The Color of Pain: Blacks and the U.S. Health Care System – Can the Affordable Care Act Help to Heal a History of Injustice? Part I

By Jennifer M. Smith

Of all the forms of inequality, injustice in health care is the most shocking and inhumane. . . —The Rev. Martin Luther King, Jr. 1


In 1940, when Moses A. Robinson was only 13 years old, he wanted to go to a movie in his hometown of Franklin, Louisiana. Because of the segregation and overt racism of the time, his mother preferred that he not go alone, 2 but she relented. The movie ended at dusk. He thought he saw a friend from school. She had a scarf on her head and was turned away from him. He approached her, touched her arm and said, “What’s the matter? Don’t you want me to walk you home?” She turned toward him, and he realized that he had made a mistake. It was a white girl. He apologized, explained that he thought she was someone else, and went home.

Soon after Moses arrived home, there was a loud knock on the family home’s door. His mother opened the door and there stood two white sheriffs. They had come to arrest Moses for the crime of touching and talking to the white girl at the movie theater. The sheriffs took him to jail, and after a “trial,” the 13-year-old was sent away to prison.

Moses had always talked about being a physician. However, he was born into a poor, uneducated black family and lived in a small town with no educational opportunities, so no one took him seriously.

In prison, perhaps due to his age and small stature, he was sent to work in the prison hospital. This experience served to strengthen his determination to be a doctor.

When he was released from prison, Moses completed his high school education at a different school than the one he attended when he was arrested in his hometown. Even though his arrest and conviction were unjust, they were a blemish on his character and resulted in his being shunned at his former school.

After graduation Moses’s family sent him to California to live with relatives. There, he worked various menial jobs and attended college. In 1951, he received a bachelor’s degree in education from California State College at Los Angeles. 3 Still with an abiding desire to attend medical school, he settled on employment with the United States Postal Service until an opportunity arose. 4 He completed graduate courses while he worked 5 and then entered military service. 6 Upon his discharge, he was even more determined to attend medical school, 7 and at times worked two full-time jobs while taking pre-med courses at California State College. 8 His hard work paid off.

Moses was accepted at the California College of Medicine (which became University of California Irvine School of Medicine). 9 There were no other blacks there. Although he was accepted to the medical school, there were no available seats in his incoming class.

On campus one day, Moses met a stranger, who had also been accepted but for whom there was a class opening. The stranger told Moses that he was not going to medical school, and Moses could have his spot. Moses was overwhelmed with gratitude, but then he became anxious about all he would have to do to accept the offer. He had no place to live near campus, nor did he have money for books. But Moses’ good luck continued to hold, as the stranger who gave up his medical school seat also offered him his apartment, and a professor supplied him with books.

Moses graduated from the California College of Medicine in 1962, becoming a medical doctor eleven years after he received his undergraduate degree. He was the first black person to graduate from the school, and he graduated at the top of his class. He completed his internship and residency at Los Angeles County General Hospital. He never saw the stranger again.

Dr. Robinson began his private practice in 1964. He was a member of the National Medical Association, a non-segregated association founded in 1895 to represent African American physicians and health professionals in the United States. He was also a member of the American Medical Association, which was founded in 1847 but for many years restricted the membership to whites only. 10 Notably, Dr. Robinson was among the founding members of the West Adams Community Hospital, which opened in 1971. 11

Dr. Robinson practiced as a pediatrician in California for decades. It always bothered him, however, that he could never practice in Louisiana due to his criminal record. He asked his sister to petition for a pardon. Twice it was refused. The blot on Dr. Robinson’s otherwise sterling record troubled him tremendously over the years. Dr. Robinson pleaded with his sister to try once more. This time, he also asked that she inform the judge of all of his accomplishments. Years had passed. Dr. Robinson’s pardon plea was finally granted. But within six months of the pardon, Dr. Robinson died, on April 30, 2007. 12

I. Introduction

Discrimination in its various forms has contributed to the exclusion of blacks and other people of color from the field of medicine both as health care providers and as patients in the United States. Dr. Robinson’s story is but one example. Racism has significantly harmed the health care of black people in the U.S. Generally speaking, those with the poorest health and the greatest need have had the poorest access to medical care, as well as lower quality health care than their white counterparts.

To understand this, we must consider the historical context of blacks in America and in America’s health care system. Whether as enslaved persons or free, blacks have had little to no access to medical care in the United States. The call for universal healthcare sounded over a century ago, but as political forces united against it, including powerful medical societies, the push to provide health care access to America’s citizens failed. Blacks rallied to open their own hospitals and medical schools, often with the help of white individuals and churches, to obtain the education and opportunities to provide health care to blacks and others with limited access. Civil rights advocates utilized the enforcement provisions of the civil rights laws to open the doors to America’s selective health care system. While ambitious, those activists could not often bring about the results sought. With the inclusion of more women and minorities in the health care system, the political machinery of America’s most powerful medical society finally swung around to supporting universal health care. Health reform was passed in Congress under the first black president of the United States of America, Barack Hussein Obama II—without a single Republican vote.

In 2010, President Obama signed into law the Patient Protection and Affordable Care Act, along with the Health Care and Education Affordability Reconciliation Act. These two pieces of groundbreaking legislation comprise America’s new health care system. Because of the sordid history of anti-black racism and the lack of adequate health care in the United States, this legislation has particular significance for blacks.

America’s new health care system has received a largely positive reception from blacks and others. The benefits of the new health reform cannot be overstated, especially for people who have been so heavily excluded from the health care system. Even though the ACA creates unprecedented health – care access for many citizens, and strives to correct many historical wrongs, it is not a perfect plan. Rather, it is an evolving plan that seeks to encourage suggestions and solutions toward a healthier America for all citizens.

II. Health disparities and history

Historically, blacks have largely been excluded from America’s health care system, first as patients, then as professionals. To some extent, enslaved persons received a modicum of health care in the United States. Plantation owners tended to the health of their enslaved persons as they did their livestock. 13 Indeed, “[t]he health of the Negro slave was as good as that of his white neighbors, and in some areas the Negro mortality rate was even lower.” 14 Yet, slave owners met their responsibility for the health of their enslaved persons with varying enthusiasm and enslaved blacks had no ability to seek their own medical help. 15 Nevertheless, the conditions under which enslaved persons had to work caused them to need constant medical care, and the institution of slavery produced a significant health gap between blacks and whites that continued after emancipation. 16

As property, slaves were also often used without permission as guinea pigs in medical experiments. Mr. Fortune, a slave who died in 1798, was buried in 2013. 17 He was owned by a bone surgeon, Dr. Preserved Porter, who preserved Mr. Fortune’s skeleton by boiling the bones to study anatomy at a time when cadavers were taken overwhelmingly from slaves, servants and prisoners. 18 Dr. Aubré Maynard, director of surgery at Harlem Hospital and a preeminent authority on surgery to treat chest and abdominal wounds, and who is credited with saving the life of the Rev. Dr. Martin Luther King Jr. after he was stabbed in 1958, commented strongly on the unauthorized use of blacks in teaching and research: 19

As the helpless slave, as the impoverished freedman following emancipation, as the indigent ghetto resident of today, the share-cropper or dirt farmer of the South, the Negro has always been appropriated as choice “clinical mate – rial” by the medical profession. In the mind of the unregenerate racist, who, unfortunately has always been represented in the profession, the Negro was always next in line beyond the experimental animal. Without option in the peculiar situation, he has contributed to the training of generations of surgeons, his fate subject to the quality of their skill, and the integrity of their character. He has sometimes benefited from their efforts, but he has also occupied the role of victim and expendable guinea pig.

Dr. Maynard died in 1999 at the age of 97. 20 Dr. W. Montague Cobb, a Howard University professor and editor of the Journal of the National Medical Association was amazed at the irony of white southern medical schools in the 1930s teaching their students the fundamentals of human anatomy on African American cadavers, because it acknowledged that physical equality of blacks and whites was applicable only to corpses. 21

One of the earliest known black physicians was Dr. James Derham (or Dur – ham). 22 He was born in 1762 in Philadelphia to parents who were slaves. 23 Dr. Derham was owned by Dr. James Kearsey, Jr., a specialist in throat diseases. 24 the color of pain: part I 242 national lawyers guild review Dr. Derham trained under Dr. Kearsey in a medical internship comparable to the training of other physicians of the time. 25 After Dr. Kearsey died, Dr. Derham was owned by a few other physicians before he bought his freedom in 1783. 26 Dr. Derham practiced in New Orleans and served the bi-racial and black populations, as well as some prominent whites. 27 Dr. Derham was well respected for his medical skills, even by the great colonial American physician Dr. Benjamin Rush, who met Dr. Derham in 1788. Dr. Rush said of Dr. Derham,

I have conversed with him upon most of the acute and epidemic diseases of the country where he lives and was pleased to find him perfectly acquainted with the modern simple mode of practice in those diseases. I expected to have suggested some new medicines to him, but he suggested many more to me. 28

In 1802, Dr. Derham moved back to Philadelphia from New Orleans because of the restrictions placed on persons practicing without medical degrees and continued to operate a successful medical practice. 29

Other states also enacted restrictions on slaves practicing medicine because of the talent and skill of the slave medical practitioners. In Macon v. State, the Tennessee court found that Macon allowed his slave, Jack, to go around the country practicing medicine. 30 Jack was indicted under Act of 1831, ch. 103, sect.3. 31 Evidence showed that

the defendant [Jack] was an obedient, exemplary slave, and a most successful practitioner of medicine; that he had performed many cures of a most extraordinary character, and that his character was so well established for skill in . . . healing the sick, that all his time was occupied in attending the calls of . . . diseased persons. 32

The court instructed the jury that slaves did not have a right to practice medicine. Jack was found guilty and fined one dollar. 33 He appealed, 34 and the Tennessee Supreme Court affirmed, holding:

the legislature was guarding against . . . insurrectionary movements on the part of the slaves . . . . A slave under pretence of practicing medicine, might convey intelligence from one plantation to another, of a contemplated insurrection – ary movement; and thus enable the slaves to act in concert to a considerable extent, and perpetrate the most shocking masacres [sic] . . . it was thought most safe to prohibit slaves from practicing medicine altogether. 35

Blacks continued to practice medicine in various ways even after the Macon ruling. For example, over 180,000 blacks (some born free and some escaped slaves) served in the Civil War and thirteen blacks acted as surgeons. 36 Opportunities to serve remained limited until 1863 when dwindling Union resources caused the government to recruit black soldiers. 37 In May 1863, Dr. William P. Powell, Jr. became one of the first black physicians to contract with the Union army as a surgeon. 38 He was assigned to the Contraband Hospital, which tended to fugitive slaves and black soldiers in Washington, D.C. 39 Dr. Powell served until November 1864, but when he sought a pension from the 243 government upon his retirement from medical practice, he spent the next 24 years trying to obtain it and never did. 40 He was denied because he failed to show adequate proof of disability and because he was only a contract surgeon and not a commissioned military officer. 41 It was quickly forgotten afterward, but records in the National Archives reveal the significance of blacks in the Civil War. 42

The Thirteenth Amendment freed all enslaved persons in 1865. 43 However, these freedmen wandered about hungry, homeless, and jobless, hoping for the miracle of “forty acres and a mule,” 44 promised by President Lincoln before his assassination. The miracle never came. They were left without the shelter and the modicum of basic health care that slavery once provided for them. 45 Thus, these post-Civil War years were dire for blacks. 46 Statistics from Charleston, South Carolina reveal a helpful snapshot (national death statistics were un – known). 47 There, blacks died at double the rate of whites, and black children died at three times the rate. 48

After emancipation, health conditions for former enslaved persons continued to decline, in large part because they were no longer cared for by white owners, and were denied access to health care facilities. 49 Not only were hospitals closed to blacks, but opportunities for blacks to become physicians remained closed. 50 Had whites and blacks received the same medical care, the morbidity and mortality rates of blacks would have significantly decreased. 51 “[P]overty, lack of Negro doctors and of doctors for Negroes and the exclusion of Negroes from first-class ‘white’ hospitals” were believed to be responsible for the sharp difference in mortality and morbidity rates between whites and blacks. 52

The trend of declining health for blacks continues to this day. 53 Race is a major factor that contributes to the adverse health status of blacks. 54 Poverty is also a chief cause. 55 However, poor whites, unlike blacks of any class, have traditionally had access to medical care. Yet, the medical and health establishments continue to ignore the effect of race on health outcomes. 56 One medical professional stated, “The poor health of African-Americans is not a biological act of nature nor an accident, but can be directly attributed to the institutions of slavery and racism—circumstances under which African-Americans have continuously suffered from for nearly four centuries.” 57

In 1952, Federal Security Administrator Oscar R. Ewing made stark conclusions concerning the problem of the health of the Negro:

We all know this problem stems from the inequality of life for the American Negro. It stems from the fact that he is too often compelled to accept the most unpleasant, the most hazardous, the least rewarding jobs. It stems from the fact that his income is lower than that of the rest of the population. It stems from the fact that he is too often forced to live in the crowded, unsanitary, depressing slums of America—the slums of parts of Harlem or the slums of the rural South . . . . It stems from the fact that he may too often find himself unable to get satisfactory hospital care—or, in some cases any hospital care at all. It stems from the fact that we do not have enough doctors to go around and that where this is the case for the Negro patient too often is the one who gets no doctor’s care at all. It stems from the fact that the Negro patient is too often unable to pay for the high costs of adequate medical and hospital care. 58

While the roots of unequal and inequitable health care for African Americans date back to the days of slavery, the modern mechanisms of discrimination in health care has shifted from legally sanctioned segregation to inferior or non-existent medical facilities due to market forces, which place a premium on those able to afford health care. 59

African Americans, largely poor, remained excluded from basic medical access despite winning the battle for hospital integration in the mid-1960s. Hospital limitations on care for the poor, and the refusal of many hospitals and physicians to accept Medicaid, demonstrated the link between economic and racial barriers to access. . . . Black communities were ravaged by epidemics of hypertension, diabetes, and infant mortality, national civil rights organizations helped local activists set up neighborhood health clinics and demonstration projects. Like union clinics earlier in the century, the local health care projects of the 1960s and 1970s worked not only to address immediate needs but also to spread the idea of universal access. 60

From 1965 to 1975, there was a modest period of improvement in health care for blacks. 61 This was a result of increased access to health care and an infusion of federal funding for health services, which emanated from the enactment of the Civil Rights Act of 1964 and Voting Rights Act of 1965, Medicare and Medicaid laws, and federal hospital desegregation rulings, as well as efforts by the community health center movement. 62 However, “deterioration of these limited health care systems for the poor resumed in the new ‘competitive’ and privatized health system environment.” 63

After 1975, the political and financial commitments to black health care diminished. Blacks’ health care, as compared to whites, deteriorated significantly after 1980. In the mid-1980s, blacks were losing longevity for the first time in the twentieth century. 64 Health disparities have decreased since the 1980s, but significant disparities due to race, ethnicity, and economics remain. 65

A significant factor in the health disparities across racial, ethnic, and economic lines is a direct result of America’s lengthy and atrocious history of segregation, especially against blacks. Health care, in fact, has been an especially segregated area of American life. While de jure segregation—segregation sanctioned or enforced by law—ended in the 1960s as a result of the civil rights movement, de facto segregation—without the sanction of law 66 —has never ended in the United States, including in health care.

Both types of segregation have been detrimental to the health of blacks, and have crippled the professional development of black physicians, nurses, and other medical professionals. 67 Studies continue to reveal racial disparities in the treatment of patients who have comparable health insurance and the same diseases. 68 Yet, medical professionals and the public deny that racial disparities in medical treatment exist. 69 Even voluntary medical societies, which should have understood the significance of universal access to healthcare and which could have included blacks in their organizations, adamantly maintained their segregated policies with few exceptions.

III. Organized medicine

A. American Medical Association

The American Medical Association (AMA) was founded in 1847 and played a key role in the development of medicine in the United States. Indeed, “[a]t the founding meeting the delegates adopted the first code of medical ethics, and established the first nationwide standards for preliminary medical education and the degree of MD.” 70 The AMA’s “position of undeniable authority and influence . . .” is undisputed. 71 At one time, it was deemed to be “the most powerful legislative lobby in Washington.” 72 The strength of the AMA was in its influence over the medical profession, which attached to it the prestige and public confidence of doctors generally, and its strong financial position. 74 Membership in the AMA carried numerous benefits. 73 For decades, the AMA denied membership to blacks.

In 1888, the AMA approved all members of state medical societies as “ de facto permanent members” of the AMA, thereby technically allowing its first African American members. 75 However, there was still no access to the AMA annual meetings or other opportunities to participate in the policy and development of medicine at any significant level. Thus, the opportunities for people of color, and at that time particularly for blacks, to contribute toward the development of medicine were rare and often simply non-existent. 76

The very same year that the AMA was founded, an American medical school—Rush Medical School of Chicago, Illinois—awarded America’s first medical degree to a black American, David Jones Peck. 77 Three years later, Harvard admitted three blacks to its medical school. However, Oliver Wendell Holmes, Sr., a 1836 graduate of Harvard’s Medical School and its then-dean, expelled the three black students under pressure from some of the white students. 78 In 1854, John Van Surly DeGrasse was admitted to the Massachusetts Medical Society and became the first black doctor to gain admission to a United States medical society. 79 Although the AMA had not yet opened its doors to black doctors, various state medical societies began allowing blacks to join their organizations. 80

The AMA’s influence in the movement for universal health insurance can – not be overstated. When President Theodore Roosevelt sought to regain the presidency in 1912, his personal physician was Dr. Alexander Lambert, an the color of pain: part I 246 national lawyers guild review AMA leader. Dr. Lambert was influential enough to get national health insurance on the Progressive Party platform, but the endeavor to establish national health insurance ended with the defeat of Roosevelt for a second full term. 81 The AMA supported national health insurance from 1915 to1920. 82

The AMA opposed universal health insurance for years. In 1934, the AMA formally adopted a position against mandatory health insurance when President Franklin D. Roosevelt announced his intention to begin a federal social security program. In 1935, President Franklin D. Roosevelt signed the Social Security Act (“SSA”) into law. The SSA achieved a great deal for poor and working Americans—unemployment insurance, old-age assistance, aid to dependent children and grants to the states to provide various forms of medical care—but it was not the “comprehensive package of protection” against the “hazards and vicissitudes of life” that many of its supporters had hoped. 83 Notably, the SSA did not include national medical benefits.

The AMA boasted that, despite passage of the SSA, “It does not include compulsory health insurance due to AMA influence.” 84 The AMA denounced group medicine, in favor of conserving individual entrepreneurial practice, and voluntary insurance as “socialized medicine.” 85 Ultimately, President Roosevelt succumbed to the AMA’s powerful lobbying. 86 As the white establishment continued its opposition to universal health care and access to any health care to blacks, the question became whose obligation was it to provide health care to blacks, who had been excluded from every aspect of the American health care system? 87

B. Black medical professionals, hospitals, and medical associations

With the end of slavery, the federal government stepped in to help. The federal government created the Freedmen’s Bureau in 1865 to assist freed slaves during Reconstruction. 88 The Bureau’s medical department organized nearly a hundred hospitals and dispensaries throughout the South. By the early 1900s, seven black medical schools existed. In 1910, education reformer Abraham Flexner, who thought little of blacks, recommended in his highly influential Flexner Report that only two of the seven remain open. 89 Howard University Medical School, founded in 1868 as the first medical school open to all races and genders, 90 and Meharry Medical College, founded in 1876 as the medical department of Central Tennessee College, and open for the education of black physicians, were the two that survived. 91 Both are leading institutions today serving minority and lower income populations, as well as training numerous African American physicians.

Notwithstanding the emergence of Howard University Medical School, three black physicians were denied membership to the Medical Society of the District of Columbia in 1869–70. 92 Thus, black and white doctors formed the National Medical Society of the District of Columbia in 1870. 93 That same year, however, the members were excluded from the AMA’s annual meeting, and in 1872, the AMA reaffirmed its refusal to admit Howard University, Freedman’s Hospital, and the National Medical Society of the District of Columbia as members. 94

During the post-Reconstruction period, America’s southern states soon replaced slavery with “Jim Crow” legislation, which segregated blacks and whites in virtually every aspect of life—trains, wharves, restaurants, barber shops, theaters, drinking fountains, and schools. 95 Thus life for blacks was made no easier with the end of slavery. They now had to struggle to survive with little opportunity for housing, shelter and other basic necessities. The threat of physical violence was almost as pervasive as in the slave era. The first two years of the twentieth century were marked by 214 lynchings of blacks in the South. 96 Survival for blacks was challenging, and with the constant violence, a basic difficulty “was always the lack of black professionals in the health professions.” 97

During the 1890s and as a result of continued exclusion and rejection by the white medical establishment, African American doctors ignited a black hospital movement, led by black doctors such as Daniel Hale Williams, Nathan Francis Mossell, and Robert F. Boyd. 98 Black hospitals allowed blacks to take advantage of the latest in medicine and surgery advances. 99 In 1893, Dr. Daniel Hale Williams, an 1883 graduate of Chicago Medical School and America’s first African American cardiologist, performed America’s first successful open heart surgery. 100 Keenly aware of the limited opportunities for blacks in the medical profession and that many black physicians lacked hospital privileges, Dr. Williams founded Provident Hospital in Chicago, Illinois in 1891. It was created to serve all races and ethnicities and had financial support from both the black and white communities. 101

Dr. Williams helped to establish the National Medical Association (“NMA”) in 1895, the only national organization that allowed black doctors to become members. 102 Since its founding, the NMA has fought to eliminate discrimination and segregation against health care professionals and in health care facilities. 103 In particular, the NMA advocated against segregated hospitals during World War II. The NMA opposed the “separate but equal” exception in the Hill-Burton Act of 1946, which provided federal dollars for the construction of hospitals.During the civil rights crusade, the NMA demanded that black doc – tors be allowed privileges in all hospitals. 104 Some white doctors, too, joined black doctors in the struggle for a better and healthier America by becoming members of the NMA to end racial discrimination in medicine. 105 The NMA grew to become an effective voice for black physicians, but their organizing was unable to secure staff privileges for the black physicians. 106

Dr. Williams was the first to call for the establishment of black hospitals. In his 1900 speech to the Phyllis Wheatley Club of Nashville, Tennessee, prompted by the continual racial discrimination against black physicians, other medical professionals, and patients, Dr. Williams called on blacks to build their own hospitals. In 1923, the NMA founded the National Hospital Association, (“NHA”), launching the black hospital movement. 107 The NHA was organized “to ensure proper standards of education and efficiency in black hospitals.” 108 The NHA was also organized “to encourage better facilities for the training of those men and women who were eager to serve in the amelioration of [inadequate hospitalization] and the proper care of Negro patients.” 109

Segregation forced a two-hospital system—one for white America and the other for black America. Ultimately, integration and assimilation led to the decline of the two-hospital system and thus, the demise of the black hospital. 110 Some of these black hospitals were opened by members of the white community. 111 The black hospital movement which had begun nearly 25 years earlier ended in 1945. 112 Notwithstanding the magnanimous efforts of the black physicians, black nurses were the first to break the color barrier. In the 1940s, white hospitals had shortages in nursing staff, and began hiring black nurses to fill in the gaps. 113

The mid-1950s saw the emergence of the civil rights movement, which had two major agenda items for African Americans: desegregation and voting rights. Sit-ins, boycotts, marches, and freedom rides breathed life into the movement. The fight against segregation was deeply intertwined with the national health care debate, 114 and black physicians, as well as other health professionals, were central to the civil rights movement. 115 Yet, it was clear that desegregation would not guarantee racial equality in health care. In 1964, physicians in the civil rights movement formed the Medical Committee on Human Rights, an organization of black and white physicians and healthcare workers, to provide medical aid to civil rights workers in the South; these activist physicians soon had to to fight “inadequacies in health care” in the North as well. 116 At the time, the AMA and the NMA were still on opposite sides of the universal health care debate.

C. Organized medicine and universal health care

In 1938, the NMA members were recognized by the AMA to address issues of racial discrimination in health care. 117 Contrary to the AMA’s failure to support compulsory national health insurance, 118 the NMA endorsed national health insurance advanced by Senator Robert Wagner in 1939. 119 Senator James Murray and Congressman John Dingell joined Senator Wagner to introduce the seminal proposal for federal compulsory health insurance financed through social security payroll taxes in 1943, then again in 1945, 1947 and 1949. 120 President Truman, in 1946, pushed for national health insurance through social security legislation. 121 Unlike the NMA,which supported the bill, the AMA spent over $1 million dollars after President Truman’s presidential victory in 249 1948 to defeat the Wagner–Murray–Dingell bill. 122 The viability of the health insurance bill disappeared when the majority of its supporters lost their congressional seats due to the AMA’s anti-health reform campaign. 123 Although the AMA maintained an exclusively white organization, it “deemed it politic to court colored non-member doctors for support in its opposition to compulsory health insurance.” 124

Health care for the aged and impoverished was sparse before Congress passed the Social Security Act Amendments of 1965, simultaneously creating Medicare for the elderly and Medicaid for the poor. 125 There were small federal and state government programs, helped by local governments, charities, and community hospitals, but this healthcare patchwork was not meeting the needs of seniors and low income citizens. 126 The AMA continued its stand against health reform. However, it faced formidable opponents: retirees. Nearly15,000 senior citizens marched at the 1964 Democratic Convention in Atlantic City. 127 Senior citizens as a group grabbed the heart of Americans, which made it difficult for the AMA to continue its attack on health care reform. 128

In 1968, the Massachusetts Medical Society, which in 1854 was the first U.S. medical society to admit an African American member, proposed that the AMA amend its Constitution and Bylaws to give its Judicial Council the authority to expel constituent societies for racially discriminatory membership policies. 129 The AMA House of Delegates adopted the proposal 130 —finally accepting that the organization had enforcement authority over its affiliated state and county medical associations. In the same year, the Association of Medical Colleges recommended that medical schools increase their enrollment of students who were inadequately represented in the classrooms—that is, African Americans, in particular, and other minorities. 131 In the mid-1990s, the AMA officially recognized the systemic race-based disparities in health care, 132 and it publicly and formally apologized in the late-2000s for its decades of overt discrimination. 133 Yet, the effects of limiting African Americans’ participation in the development of medicine in the United States as physicians, other medical professionals, and patients are evident even today. “For much of the 20th century, racial discrimination deprived African Americans of basic health care and forced them to concentrate on building their own institutions, like fraternal societies, life insurance companies, and community public health movements.” 134

While healthcare professionals of color fought national associations for membership, other civil rights movement organizers, including the NMA, were fighting on other fronts for health care access. Often, organizers were also at odds with the “elite-led” campaigns lobbying for health reform because they ignored the black workforce and excluded blacks from studies about health reform and its costs. 135 In 1991, the AMA proposed Health Access America, which was a reform to the U.S. health care system that included expansion the color of pain: part I 250 national lawyers guild review of health insurance coverage. 136 Ironically, the AMA opposed President Bill Clinton’s health reform plan a few years later. 137

In its most recent years, the AMA began advocating for increased health care access and broadening its efforts to promote awareness of health care disparities. In 2002, the AMA’s Minority Affairs Consortium, an AMA minority special interest group, launched a program to promote the need for more minority physicians and to encourage people of color to select medicine as a career. 138 This minority special interest group finally obtained a voting role in the AMA in 2004—several years after the specialty group came into existence. 139 In 2005, the AMA, along with the NMA and the National Hispanic Medical Association (“NHMA”), created the Commission to End Health Care Disparities to educate health care professionals and physicians about inequality in health care. 140 In 2007, the AMA produced its own literature to establish its position as an advocate for health insurance for all Americans. 141

American physicians have evolved from largely supporting Republicans to leaning Democratic, due to “increasing percentage of female physicians and the decreasing percentage of physicians in solo and small practices.” 142 Surely the increasing number of minority physicians, many of whom are Democrats, played a large role as well. In 2009, the AMA supported the health reform bills advanced by both the Democratic House and the Senate. 143 Finally in 2010 the historic Patient Protection and Affordable Care Act was passed, along with the Health Care and Education Affordability Reconciliation Act, an addendum which finalized the Patient Protection and Affordable Care Act and included student loan reform as well. President Obama skillfully assessed and conquered the hurdles President Clinton failed to overcome in his effort for universal healthcare, and successfully negotiated with the AMA and other stakeholders in healthcare. 144 Nearly a century after Theodore Roosevelt broached the idea of “universal health care,” it finally came into being. 145


Jennifer M. Smith is an associate professor of law at Florida Agricultural & Mechanical University College of Law. She was formerly a partner at Holland & Knight LLP and department chair of its South Florida Health Law Group, as well as a federal judicial law clerk to the Honorable Joseph W. Hatchett, former chief judge of the U.S. Court of Appeals for the Eleventh Circuit. This article was largely derived from a speech Professor Smith delivered at the 2012 Health Symposium, “Social Determinants Impact Health Disparities: Myth or Reality,” at Florida A&M University in April 2012. Professor Smith thanks Dr. Russell J. Davis, co-founder and president of Summit Health Institute for Research & Education, for his guidance on this article.


NOTES 1 Second Nat’l Convention of the Med. Comm. for Human Rights, Mar. 25, 1966. 2. The author uses the terms “black” and “African American” interchangeably to refer to Black Americans in the United States and maintains the terms “Colored” and “Negro” in their historical contexts. 3. J aMes a. G oodso N , t he c urre Nt b lack M aN : d ecade ’70 122 (1st ed. 1971). 4. Id. ; see also History: The Founders Early Years Later Years Recent and Current Programs, N at ’ l M ed . a ss ’ N , &id=3&Itemid=4 ( last visited Jan. 11, 2016) [hereinafter The Founders ] (“In 1951, several white medical colleges in the South and in border states gradually began admitting black students, and within ten years enrollment nearly doubled. The number of black students enrolled in medical school increased from 15.8 percent in 1947–48 to 31.0 percent in 1955–56. By the early 1960s, over half of all southern medical schools (14 out of 26) were admitting black students.”). 5. G oodso N , supra note 3. 6. Id. 7. Id. 8. Id. 9. UC Irvine Health School of Medicine Historical Timeline , u.c. i rvi Ne s ch . oF M ed . , http:// (last visited Jan. 11, 2016). 10. The Founders , supra note 4; see generally The American Medical Association: Power, Purpose, and Politics in Organized Medicine , 63 y ale l. J. 937 (1954) [hereinafter Power, Purpose ]. 11. N atha Niel w esley , J r ., b lack h os Pitals iN a Merica : h istory , c oNtributio Ns aNd d eMise : a c oMP rehe Nsive r eview oF the h istory , c oNtributio Ns aNd d eMise oF the M ore tha N 500 b lack h os Pitals oF the 20 th c eNtury 56 (NRW Assocs. Pub. 2010) (noting that West Adams Community Hospital “converted to proprietary status in 1978” and “[o]pened under a new corporation in 1980”); J et M aGazi Ne , No. 11, 27 (Dec. 18, 1969) (noting that ten black physicians, Drs. Moses Robinson, George F. Jackson, Herbert Williams, Gerald Nickerson, Basil Arthur, Samuel Cotton, Ralph Bledsoe, Andrew Jackson, William A. Beck, and Ludlow B. Creary, formed a general partnership to build the West Adams Community Hospital with private black capital, citing a critical need for hospital care in the black community in Los Angeles.). S ee also G oodso N , supra note 3, at 11, 122. 12. History of Dr. Moses Robinson as recorded by his family on file with author; G oodso N , supra note 3, at 122. 13. Max Seham, M.D., Discrimination Against Negroes in Hospitals , N ew e NG . J. M ed . 940 (1964); v er N l. b ullou Gh & b oNN ie b ullou Gh , h ealth c are For the o ther a Merica Ns 39 (1982); d avid b arto N s Mith , h ealth c are d ivided (1999). 14. Seham, supra note 13. 15. t odd s avitt , M edici Ne aNd s lavery 148 (1978). 16. h erbert M. M orais , t he h istory oF the N eGro iN M edici Ne 20 (N.Y. Publishers Co., 1st ed. 1967); see also s Mith , supra note 13, at 12 (“The plantation system of medical care ended with emancipation.”). 17. Conn. Slave who died in 1798 called “child of God,” available at article/funeral-planned-conn-slave-who-died-1798. 18. Id. 19. Maynard, Aubre De Lambert (1901-1999) , M arti N l uther k iNG , J r . aNd the G lobal F reedo M s tru GG le , enc_maynard_aubre_de_lambert_1901_1999/ (last visited Jan. 11, 2016); Wolfgang Saxon, Dr. Aubre de Lambert Maynard, 97, a Surgeon , N. y. t iMes (Mar. 23, 1999) , http://www. ; Our History , h arle M h os Pital c eNter , – tory (last visited Jan. 11, 2016); s Mith , supra note 13, at 24. 20. Saxon, supra note 19. 21. s Mith , supra note 13, at 25. 22. James Durham, (1762-?) Physician, Gains Professional Recognition, Chronology , o Nli Ne e Ncyclo Pedia , (last visited at Jan. 11, 2016). 23. Id. 24. Id. 25. Id. 26. Id. 27. Id. 28. M orais , supra note 16, at 9. 29. Durham , supra note 22. 30. II J udicial c ases c oNcer NiNG a Merica N s lavery aNd the N eGro 520 (Helen Tunnicliff Catterall ed., 1929) (citing Macon v. State , 23 Tenn. 421 (1844)). the color of pain: part I 252 national lawyers guild review 31. Id . 32. Id. at 520-21. 33. Id. at 521. 34. Id. 35. Id. 36. Jill L. Newmark, Face to Face with History , N atio Nal a rchives , http://www.archives. gov/publications/prologue/2009/fall/face.html (last visited Jan. 11, 2016). 37. Id. 38. Id. 39. Id. 40. Id. 41. Id. 42. Id. 43. M orais , supra note 16, at 48-49. 44. Id. at 49; see also h.c. b ruce , t he N ew M aN , t we Nty – NiNe y ears a s lave , t we Nty – NiNe y ears a F ree M aN 117 (1895) (“It does seem to me, that a Christian Nation, which had received such wealth from the labor of a subjugated people, upon setting them free would, at least, have given them a square meal. Justice seems to demand one year’s support, forty acres of land and a mule each. Did they get that or any portion of it? Not a cent. Four mil – lion people turned loose without a dollar and told to ‘Root hog or die!’”). 45. M orais , supra note 16, at 49; see also b ruce , supra note 44, at 116 (“This was the condition of the Colored people at the close of the war. They were set free without a dollar, without a foot of land, and without the wherewithal to get the next meal even, and this too by a great Christian Nation, whose domain is dotted over with religious institutions and whose missionaries in heathen lands, are seeking to convert the heathen to belief in their Christian religion and their Christian morality.”). 46. M orais , supra note 16, at 49. 47. Id. at 50. 48. Id. 49. Seham, supra note 13; b ullou Gh & b ullou Gh , supra note 13, at 181-89. 50. M orais , supra note 16, at 2 (“Like Negro patients, Negro physicians have been victim – ized by a racist ideology that has plagued the American scene from colonial time to the present. With few exceptions, they have been excluded from the mainstream of American medicine.”); b ullou Gh & b ullou Gh , supra note 13, at 43. 51. Seham, supra note 13. 52. Id. See also b ullou Gh & b ullou Gh , supra note 13, at 50 (“Perhaps as important as poverty in contributing to the inequalities of health care, as far as the blacks are concerned, are past and present practices of discrimination.”). 53. See generally Life Expectancy, CDC, (last updated Apr. 29, 2015). 54. w. M ichael b yrd & l iNda a. c layto N , a N a Merica N h ealth d ile MM a : a M edical h istory oF a Frica N a Merica Ns aNd the P roble M oF r ace , b eGiNN iNG s to 1900, at 27 (2000). 55. Seham, supra note 13. 56. b yrd & c layto N , supra note 54. 57. Racism in Medicine and Health Parity for African Americans: “The Slave Health Deficit,” N at ’ l M ed . a ss ’ N , pdf?paperid=4770286 (last visited on Jan. 11, 2016) (Dr. Rodney Hood former president of the National Medical Association, 2005, on the “Slave Health Deficit”); see also b yrd & c layto N , supra note 54, at 43 (“The roots of inequitable and unequal health care and health systems for Blacks stretch back to slavery”); s usa N l. s Mith , s ick aNd t ired oF 253 b ei NG s ick aNd t ired : b lack w oMeN ’ s h ealth a ctivis M iN a Merica , 1890-1950 17 (1995) [hereinafter s Mith , s ick aNd t ired ]. 58. M orais , supra note 16, at 4. 59. “Since World War II, health services for Blacks (three-fourths of whom are either uninsured or underinsured, or totally dependent on diminishing government and public aid health insurance programs) and the poor have been shaped and dictated by several factors. Most important are the lack of fully trained, culturally competent physicians of quality willing to serve African Americans; the lack of adequate numbers or distribution of quality private or public outpatient health care facilities to serve the Black community; a U.S. tradition of underfunding and restricting the activities and delivery functions of health departments and other publicly funded health facilities; personal and/or institutional racial discrimination within the health care system; African American dependency for inpatient and primary health care on a loose and inconstant (many urban U.S. communities do not have public hospitals) network of underfunded, overcrowded, deteriorating public and voluntary hospitals; the inadequacies of episodic, sometimes absent, charity health services to plug gaps in the public health care sector to meet vital Black community needs; and non-existent or meager funding at local, state, or federal levels for health care rendered to indigent, disadvantaged, or working poor patients.” b yrd & c layto N , supra note 54, at 43–44. 60. Beatrix Hoffman, Health Care Reform and Social Movements in the United States, 93 a M J P ublic h ealth 75 (2003), available at PMC1447696/#r5. 61. b yrd & c layto N , supra note 54, at 44. 62. Id. at 17. 63. Id. at 44. 64. Id. at 17; Stan Dorn, Michael A. Dowell & Jane Perkins, Anti-Discrimination Provisions and Health Care Access: New Slants on Old Approaches , 20 c leari NG house r ev . 439, 439 (1986) (“One of the cruel ironies of today’s health care system is that the very groups most in need of care are those least able to get it.”). 65. CDC Health Disparities and Inequalities Report: United States 2011, cdc , at 1, available at [hereinafter Health Disparities ]. 66. t he G ree Nwood e Ncyclo Pedia oF a Frica N a Merica N c ivil r iGhts 139 ( Charles D. Lowery & John F. Marszalek eds. , 2003). 67. M orais , supra note 16, at 4; see also b ullou Gh & b ullou Gh , supra note 13, at 46 (“One of the areas in which the past history of discrimination, repression, and suspicion has most effectively left its mark upon the black of today is in the area of health care.”). 68. Marsha Lillie-Blanton & Caya B. Lewis, Policy Challenges and Opportunities in Clos- ing the Racial/Ethnic Divide in Health Care , t he h eNry J. k aiser F aMily F ou Ndatio N (2005), and-opportunities-in-closing-the-racial-ethnic-divide-in-health-care-issue-brief.pdf . 69. Id. 70. The Founding of the AMA , aMa, (last visited Jan. 11, 2016). 71. Power, Purpose, supra note 10, at 938; see also b yrd & c layto N , supra note 54, at 416. 72. Id. at 955 (citing Huston, AMA is Potent Force Among the Lawmakers , N. y. t iMes , June 15, 1952, at § 4 (Magazine), at 7 (stating “[s]ome rather expert observers of the art of lob – bying as practiced in Washington assert that the AMA is the only organization in the in the country that could marshal 140 votes in Congress between sundown Friday night and noon on Monday. Performances of this sort have led some to describe the AMA lobby as the most powerful in the country”); see also b yrd & c layto N , supra note 54, at 59 (“By the end of this era, in 1929, White organized medicine was a major political and social force. Not only had the medical profession regulated itself, but it also had gained control of all aspects of the health care system necessary to provide scientifically sound medical services to the population it chose to serve.”). the color of pain: part I 254 national lawyers guild review 73. Power, Purpose, supra note 10, at 947-48. 74. Id. at 939-40. 75. R.B. Baker, African American Physicians and Organized Medicine , 1846-1968: Origins of a Racial Divide, AMA (July 16, 2008). 76. b yrd & c layto N , supra note 54, at 59 (“Barred from admission to local medical societies, African American physicians were forced to sit on the sidelines observing the phenomenal growth of both the profession and the health care industry.”). 77. Baker, supra note 75. 78. Id. 79. Id. 80. See Power, Purpose, supra note 10, at 941 n.22 (noting that most southern societies of the AMA excluded blacks from membership, but “the AMA as a national organization has failed to take steps toward a fundamental change in membership policy,” asserting its “inability to act, pointing out that each county society has absolute control over its own membership qualifications.”). 81. b ullou Gh & b ullou Gh , supra note 13, at 211. 82. Id. 83. Pre-Social Security Period: Traditional Sources of Economic Security , s oc . s ec . a dMiN – istratio N , (last visited Jan. 11, 2016). 84. AMA History Timeline , aMa, timelines-ama-history/ ? (last visited Jan. 11, 2016). 85. Hoffman, supra note 60. 86. Id. 87. s Mith , supra note 13, at 12. 88. M orais , supra note 16, at 50. 89. Louis W. Sullivan & Ilana Suez Mittman, The State of Diversity in the Health Professions a Century After Flexner, a cadeMic M ed ., 85 (2010), available at http://www.ncbi.nlm.; l eNworth N. J ohNsoN & o.c. b obby d aNiels , b reakiNG the c olor l iNe iN M edici Ne , a Frica N a Merica Ns iN o Phthal Molo Gy 24 (2002) (quoting Flexner as stating: “The practice of the Negro doctor will be limited to his own race, which in its turn will be cared for better by good Negro physicians than by poor white ones. But the physical well-being of the Negro is not only of moment to the Negro himself. Ten million of them live in close contact with sixty million whites. Not only does the Negro himself suffer from hookworm and tuberculosis; he communicates them to his white neighbors, precisely as the ignorant and unfortunate white contaminates him. Self-protection not less than humanity offers weighty counsel in this matter; self-interest seconds philanthropy. The Negro must be educated not only for his sake, but for ours. He is, as far as the human eye can see, a permanent factor in the nation.”), available at ophthalmology/uploads/ch06.pdf. 90. Baker, supra note 75; M orais , supra note 16, at 40. 91. M orais , supra note 16, at 44. 92. Id. at 52-53. See also Baker, supra note 76. 93. Id. 94. Baker, supra note 75; see also Power, Purpose, supra note 10, at 941 n. 22. 95. b ullou Gh aNd b ullou Gh , supra note 13, at 42; s Mith , supra 13, at 33. 96. b ullou Gh aNd b ullou Gh , supra note 13, at 43. 97. Id. 98. b yrd & c layto N , supra note 54, at 413. 99. Id. 255 100. s Mith , s ick aNd t ired , supra note 57, at 21; v aNessa N orthi NG to N G aMble , M aki NG a P lace For o urselves , t he b lack h os Pital M ove MeNt , 1920-1945 17 (1995) . 101. G aMble , supra note 100, at 15-17, 132, 179. 102. Id. at 17, 37; b yrd & c layto N , supra note 54, at 6 (“By the turn of the century, Blacks, in response to segregation and discriminatory caste status in the health system … established the National Medical Association (NMA) in 1895, which because of legal and forced segregation was an almost exclusively Black health professions organization composed of physicians, dentists, and pharmacists.”). 103. G ree Nwood e Ncyclo Pedia , supra note 66, at 369. 104. Id. 105. M orais , supra note 16, at 5, 39-40. 106. b ullou Gh & b ullou Gh , supra note 13, at 191. 107. G aMble , supra note 100, at 35. 108. Id. 109. w esley , J r ., supra note 11, at 95. 110. Id. at 159, 233 (quoting Hiram Sibley, Exec. Dir., Hospital Planning Council, “The Negro hospital is dead. The Civil Rights Act killed it.”). 111. G aMble , supra note 100, at 3. 112. Baker, supra note 75. 113. s Mith , supra note 13, at 41-42. 114. s Mith , s ick aNd t ired , supra note 57, at 169. 115. s Mith , supra note 13, at 32. 116. Hoffman, supra note 60; b yrd & c layto N , supra note 54, at 203. 117. Baker, supra note 75. 118. Power, Purpose, supra note 10, at 1007-12. 119. Baker, supra note 75; b ullou Gh & b ullou Gh , supra note 13, at 215 (noting the Wagner Bill failed to get out of ommittee, but Senator Wagner continued to introduce it in subsequent sessions). 120. Carleton B. Chapman & John M. Talmadge, Historical and Political Background of Federal Health Care Legislation , 35 l aw aNd c oNte MP . P robs . 334 , 343 (1970); Hoffman, supra note 60. 121. s Mith , supra note 13, at 46. 122. Hoffman, supra note 60. 123. Id. 124. Power, Purpose, supra note 10, at 942 n. 22; see also , b yrd & c layto N , supra note 54, at 278-79, xxv (“The National Medical Association (NMA) and the American Medical As – sociation (AMA) for example, are often diametrically opposed in philosophy and ideology regarding health needs, health care/services, and health rights of disadvantaged populations. Of numerous health professions that often divide along lines of “Black caucuses” or separate organizations, these are the most prominent examples.”). 125. R. A. Rettig, Socioeconomic Impact of the End Stage Renal Disease Program in the USA. Payment and Quality of Care , 14 N eFrolo Gia 14 (1994) (noting Medicare and Medicaid were both adopted in 1965); see also Marlyin J. Fields et al., Extending Medicare Cover – age for Preventive and Other Services : Comm. on Medicare Coverage Extensions, Div. of Health Care Servs., i Nst . oF M ed . 15 (2000) ( finding that Medicare was created to serve the needs of older Americans who could not pay for health care or obtain private insurance, and Medicaid was created to provide health insurance for low income individuals, mainly poor mothers with children and low-income disabled). 126. Social Security History , s oc . s ec . , (last visited Jan. 11, 2016). 127. Hoffman, supra note 60. the color of pain: part I 256 national lawyers guild review      128. Id. 129. Baker, supra note 75. 130. b yrd & c layto N , supra note 54, at 402. 131. Baker, supra note 76; see also Race and the AMA: A Chronology, aMa , http://www.ama- page ? (last visited Jan. 11, 2016). 132. Marianne Engelman Lado, Unfinished Agenda: The Need for Civil Rights Litigation to Address Race Discrimination and Inequalities in Health Care Delivery , 6 TEX. F. on C.L. & C.R. 1, 1, 6-7 (2001). 133. Jacob Goldstein, AMA Apologizes for Discrimination Against Black Doctors , w all s t . J. (July 11, 2008, 7:34 AM), discrimination-against-black-doctors/; American Medical Association Apologizes For Past Inequality Against Black Doctors , aMed News . co M (July 28, 2008), http://www.amednews. com/article/20080728/ profession/307289974/6/ (“For more than 100 years, many state and local medical societies openly discriminated against black physicians, barring them from membership and from professional support and advancement. The American Medical Association was early and persistent in countenancing this racial segregation.”) . 134. Hoffman, supra note 60 (citing David Beito, From Mutual Aid to the Welfare State: Frater – nal Societies and Social Services, 1890–1967 (Chapel Hill: University of North Carolina Press 2000) and M. S. Stuart, An Economic Detour: A History of Insurance in the Lives of American Negroes (College Park: University of Maryland Press 1969); G aMble , supra note 100; s Mith , s ick aNd t ired , supra note 57 . 135. Hoffman, supra note 60. 136. AMA History Timeline , supra note 84. 137. Kent Garber, AMA Healthcare Reform Bill A ‘Starting Point ,’ u.s. N ews & w orld r ePort (July 29, 2009, 3:58 PM), healthcare-reform-bill-a-starting-point. 138. Id. 139. Id. 140. Id. 141. Expanding Health Insurance Covereage and Choice: The AMA Proposal for Reform , AMA (2008), 142. Adam Bonica et al., The Political Polarization of Physicians in the United States: An Analysis of Campaign Contributions to Federal Elections, 1991 Through 2012 , 174 JaMa i Nter Nal M edici Ne 1308 (2014) (“Between 1991 and 2012, the political alignment of US physicians shifted from predominantly Republican toward the Democrats.”). 143. Jeffrey Young, AMA Conditionally Backs House Health Bill , t he h ill (Nov. 5, 2009), bill; Jeffrey Young, AMA Endorses Senate Healthcare Reform Bill, t he h ill (Dec. 21, 2009),; but see Salomeh Keyhani, M.D., M.P.H. & Alex Federman, M.D., M.P.H, Health Care Reform and the AMA , 362 N. e NG l . J. M ed 2230 (2010), available at full/10.1056/NEJMc1001513 (concluding from survey results that “[a]lthough the AMA is the most visible organization representing physicians, it did not represent the majority of physicians’ views on coverage expansions in recent reform efforts.”). 144. Jonathan Oberlander, Long Time Coming: Why Health Reform Finally Passed , 29 h ealth a FF airs 1112 (2010), available at (“The administration negotiated deals with health industry groups to support reform in exchange for the promise of having millions of newly insured patients to treat.”). 145. Dayna Bowen Matthew, Defeating Health Disparities , 113 w. v a . l. r ev . 31, 31-32 (2010)