More discrimination among expectant moms is a bad prescription

Weeks before her due date, first-time mother Erica Jimenez sought help with her pregnancy. Yet Jimenez was excluded from California’s Black Infant Health Program because she was not the right race.

When Jimenez attempted to access the program, a representative told her that the program was not for her and offered to show her other resources. Except for Jimenez’s race, she satisfied all the criteria that the organization presented: She was pregnant, she resided in an area that the program serves and she was over the age of 18.

Jimenez is now challenging Black Infant Health’s race-based eligibility for violating the equal protection clause of the Constitution’s 14th Amendment, which forbids the government from treating individuals differently based on race without a compelling interest.

Since 1989, California has implemented the Black Infant Health Program to improve the health of African American women, infants, and children by providing services exclusively to pregnant and postpartum Black women.

Those efforts seem to have failed. Despite more than three decades of Black Infant Health’s implementation, recent data show the mortality rate for Black infants remain higher than that of white infants.

So, after decades of race-based care, the problem persists. Yet California wants to continue the exact same treatment plan. A recent op-ed in The Hill criticized Jiminez’s lawsuit, implying there is nothing wrong with doing the same thing over and over and expecting a different result.

The piece states that aligning a public maternal health program with the Constitution and preventing it from discriminating by race is wrong because “paying attention to race in healthcare delivery can quite literally save lives.” That obviously is not what is happening in Black Infant Health. And all the while, California continues to deny Jimenez and other mothers like her equal treatment in the name of a benefit the program has failed to deliver.

While saving the lives of mothers and infants is certainly important, it doesn’t automatically justify governments use of disparate treatment by race and should continue to be viewed with skepticism. That is because our Constitution’s prohibition on racial discrimination recognizes our nation’s tragic history with race, including in the offering of separate but equal medical care .

Throughout American history, governments have repeatedly evoked the language of public health, medicine, and life-saving necessity to defend racial classifications. The Constitution does not permit the government to withhold equal treatment simply because it accompanies its discriminatory policies with an appeal to health or safety. Thus, declaring that something “saves lives” is not enough to maintain discrimination. Otherwise, the government could maintain any discriminatory program on the broad and tenuous assertion that it saves lives.

The Supreme Court has therefore repeatedly rejected broad, aspirational objectives — whether promoting diversity , serving a child’s interest s in a custody dispute, or remedying societal discrimination — as too amorphous to justify racial discrimination. California’s asserted interest in reducing health disparities is no different.

Moreover, the Constitution does not permit California to continue a discriminatory program that disadvantages and stereotypes individuals like Jimenez on the basis of race. Indeed, the fundamental eligibility criteria to participate in Black Infant Health is based on race.

The story waves the bloody shirt of saving mothers and babies to decry efforts to eliminate discrimination as “cruel.” But what is truly cruel is treating mothers and their infants based on their skin color rather than their need. As Justice Clarence Thomas noted , “Every time the government places citizens on racial registers and makes race relevant to the provisions of burdens or benefits, it demeans us all.”

And Jimenez’s lawsuit does not seek to exclude any mother from the program on the basis of race. Instead, Jimenez wants all moms who meet the criteria to be able to access the program, regardless of race. It is California and its defenders who want to preserve a form of exclusion that history long ago rejected.

Nonetheless, Black Infant Health Program’s potential to save the lives of mothers and their infants through racially segregated care is doubtful, given its demonstrated ineffectiveness over the last three decades.

The story cites a study in Florida showing that mortality of Black infants was reduced when they were treated by Black care providers. But that study was substantially undermined in a follow-up review using the same data set. The original study had been driven by omitted-variable bias, as white physicians disproportionately treated the highest-risk newborns, which were the ones with extremely low birth weight. The evidence thus no longer supports the claim of physician-patient racial concordance.

The better care plan for California’s moms is the same one that The Constitution prescribes: individual treatment. As the Supreme Court reiterated in Students for Fair Admissions v. Harvard , “Government must treat citizens as individuals,” not as mere components of a racial class. The same goes for health care. As William Osler, the Father of Modern Medicine, stated, “The good physician treats the disease; the great physician treats the patient who has the disease.”

Good medicine does not cling to failed treatments. It changes course. California’s approach to maternal and infant health does the opposite, persisting with a remedy that is not only ineffective but also unlawful.

Andrew Quinio is an attorney at Pacific Legal Foundation and is representing Erica Jimenez in her lawsuit against the State of California.