American Journal of Law & Medicine

Medical care as a public accommodation: moving the discussion to race.

I. INTRODUCTION

This Article explores the concept of public accommodation in a civil rights context and presents an argument for revising the Civil Rights Act of 1964 (Act) (1) to extend public accommodation obligations to private healthcare providers and the healthcare industry as a whole, regardless of their participation in federally assisted programs. To the extent that the Act currently reaches healthcare conduct within a relatively narrow definition of "federal assistance," this view has been eclipsed by the evolution of social attitudes toward the community-wide obligation of healthcare providers, U.S. civil rights policy at both the federal and state levels, the enormity of the federal investment in the U.S. health system and changing concepts of basic health quality. This analysis begins with a brief overview of the current structure of U.S. civil rights law in the context of racial and ethnic minority groups' access to healthcare. This Article then considers the evolution of federal public accommodation law and policy in two settings--discrimination on the basis of race or national origin and discrimination on the basis of disability. It focuses not only on the concept of public accommodation from a racial vantage point, but also from the vantage of the Americans with Disabilities Act (ADA), (2) which classifies private physicians' offices and other healthcare establishments as places of public accommodation (3) irrespective of whether the provider or entity receives federal funding. (4) This Article concludes with an assessment of the reasons why the Act should be modernized to extend to race the same legal protections against segregation and exclusion in the private healthcare sector that are now a hallmark of federal policy for persons with disabilities.

II. THE CIVIL RIGHTS ACT OF 1964 AND HEALTHCARE ACCESS

The Civil Rights Act of 1964 represents a watershed moment in U.S. civil rights policy. Addressing discrimination in such areas as employment, housing, federally assisted programs and public accommodation, the Act was intended to remedy discrimination in a broad array of settings. The term "place of public accommodation" under the Act (5) essentially reaches enterprises that sell their services to the general public and whose activities affect commerce. Specifically, the Act reaches inns, hotels and motels, restaurants and food establishments and places of exhibition or entertainment, such as theaters and arenas. (6) The definition found in the Act parallels common law concepts of public accommodation as understood at the time.

The definition of a place of public accommodation under the Act did not, and does not today, include medical care providers and facilities. Where medical care services are concerned, the Act applies only if there is evidence of the receipt of "federal financial assistance" within the meaning of the Act. (7) Furthermore, the concept of federal financial assistance has tended to focus on direct payments to institutional healthcare providers such as hospitals and nursing homes. Indeed, the history of Title VI indicates the lengths to which policy makers went to narrowly construe the reach of the law concerning private physicians. In his excellent history of Title VI, David Barton Smith describes the extent to which the potential reach of Title VI into directly federally assisted medical practices nearly caused the defeat of Medicare by Southern senators. Smith's book also chronicles the promises that the Johnson Administration made not to classify Medicare physician payments as a form of assistance. (8) Despite the fact that physicians plied their trade to the paying public, courts viewed physicians in private practice as outside the realm of a place of public accommodation; (9) the "kid gloves" treatment that was the hallmark of legal rulings carried over into the broader reaches of U.S. civil rights policy as well.

As much of a landmark as it was generally in the areas of both public accommodation and healthcare practice, the Civil Rights Act of 1964 tread lightly where privately operating medical care providers were concerned. Public accommodation is limited to only certain types of commercial enterprises and those businesses that had a veneer of professionalism, even though they were also commercial enterprises that enjoyed a seller's franchise over a valuable commodity, were excluded. Furthermore, even where jurisdiction was conferred, it was exercised in certain respects with the lightest of touches. Although the importance of the federal financial provisions of Title VI can hardly be overstated, every effort was made immediately following enactment of the law to clarify the limitations of its reach where office-based medical practice was concerned. Despite the fact that both the common law and state statutes regulating the conduct of institutional healthcare providers were evolving to include an explicit duty of care, at least in certain narrowly defined circumstances, private medical practices remained untouched. (10)

III. THE EVOLUTION OF PUBLIC ACCOMMODATION LAW IN THE UNITED STATES: FROM THE CIVIL RIGHTS ACTS OF 1875 TO THE AMERICANS WITH DISABILITIES ACT

In considering whether a broader definition of "place of public accommodation" is warranted in the healthcare context, it is important to understand how the concept has evolved in federal law over more than one hundred years. A tracing of this evolution shows that following judicial rebuff of Congress' earliest efforts to define and reach places of public accommodation, federal policy makers ultimately established their power to regulate private enterprises in the civil rights context. In fact, policy makers extended their reach to the medical care system as part of the 1990 overhaul of the nation's civil rights laws related to disability.

A. THE CIVIL RIGHTS ACT OF 1875

In 1870, Senator Charles Sumner, a Republican from Massachusetts, proposed the first public accommodation law in the United States, when the outlines of the modern healthcare system had yet to emerge and medical care had not yet come to occupy the human and social value it holds today. (11) Sumner's bill would have prohibited racial discrimination in facilities of public accommodation such as public conveyances, hotels, restaurants, public schools and even churches--but not medical facilities. (12) The public accommodation provision eventually enacted into law as the Civil Rights Act of 1875 (as a "memorial" to Sumner after his death) was considerably less sweeping in its approach to the concept of "place of public accommodation" than the original proposal. (13)

Congress based this legislation on Section 5 of the Fourteenth Amendment which grants Congress broad powers to remedy discrimination. The 1875 Act, however, was declared unconstitutional in 1883 by the Supreme Court in The Civil Rights Cases, (14) when a majority of the Court held that the law exceeded Congress's power to enforce the provisions of both the Thirteenth and Fourteenth Amendments. The prohibitions contained in the first section of the Fourteenth Amendment, including those of the Equal Protection Clause, were directed at prohibiting state actions that served to deny the rights protected by the amendment, (15) so the Act's attempt to reach what the Court viewed as purely private conduct exceeded congressional authority. (16) In so holding, the Court permitted "social segregation," which in conjunction with other factors created a devastating atmosphere for African-Americans whose hopes for an emancipated and integrated society hinged on a strong enforcement of the Reconstruction Amendments. …

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