Reparations serve as a heuristic to challenge broader systems of discrimination.

Section II of this Article critiqued etiological reductionism which seeks to adjust health disparities studies for all SES variables. In exchange, this Article offers reparational analysis as a heuristic device for health disparities research. Reparational analysis modifies some of the methodologies and assumptions in the epidemiological literature on disparities in Black health. In research design, reparational analysis questions all adjustments for confounding variables which are themselves associated with a history of racial injustice. For Blacks, income, wealth, education, housing, and employment have all suffered under parallel histories of oppression. No matter how the strands are twisted and knotted, racism was a major cause of disparities in each of these variables. Reparational analysis reverses the decision to adjust for many SES variables, and will result in finding larger Black health disparities than are now reported. As a policy making tool, reparational analysis is also more holistic, reminding us that many factors influence health other than health care. The causes of ill health include major structural and societal components, including residential segregation, wealth and income disparities, inadequate investment in public health, and employment disparities. If these factors are just intermediate causes of disparities in Black health, then the remedies must run broadly and deeply. Some of the most interesting work on health disparities takes this approach, connecting the health care system to other social factors such as racial segregation, education, employment and public health. This research is also helpful in identifying the appropriate remedies. Opponents of reparations deride the notion of giving large sums of cash to Blacks, including people of mixed race or recent immigrants. Remedial programs in health will address Black disparities without cutting checks on the basis of skin color. One possible remedy would be specific performance, making the changes necessary to equalize Black health. Even if the damages were limited to the cost of first-class health care for the balance of their lives, the monetary value of this award would run to hundreds of billions of dollars, similar in magnitude to much broader Black reparation claims. 264 Eliminating Black health disparities is a much more significant claim (in dollars) than other Jim Crow strategies, particularly single-event suits like the 1921 Tulsa Race Riot. To truly address Black health disparities would require changes to many of the confounding variables described in Section III, supra, such as unequal distributions of income, residential segregation, education and employment. Repairing Black health fully would require fundamental changes in American society. Even if one limits the remedy to the health care system, much would have to be done. Professor Sidney Watson identified four prongs to any program to remedy racial disparities in health: health care financing (financial access); attracting sufficient providers to the inner cities (geographic access); combating discrimination (enforce Title VI); and developing a health care system which is responsive to 265 the needs of the population (cultural competency). More recently, she has called for using quality improvement tools to reduce racial and ethnic disparities in health.266 Major structural changes will be required. Eliminating the second-class nature of Medicaid will require reimbursement of providers on the same basis as Medicare, and tying Medicare and Medicaid participation together. Massive changes in the system of educating providers would be required. Public health investments would be strongly supported, and not merely as a defense against terrorism. These and other remedies will not only improve Black health, but will have positive spillover effects to other minority groups and society as a whole. In the law, the reparations heuristic moves us beyond the atomistic search for intentional individual discrimination. The focus shifts to disparate impact and institutional discrimination. The absence of de jure discrimination has done little to reduce disparities in Black health. Waiting many generations for the situation to correct itself is not a morally tenable option. Focusing on institutional discrimination may involve the law more meaningfully in the process of improving Black health: Medicaid cannot continue to offer second-class care with limited provider participation. Data must be collected to illuminate the scope of the problem and to guide remedial and enforcement efforts. Title VI cannot continue to be a dead letter. Reparational analysis also avoids the tyranny of presentism. 267 The Black reparations movement connects modern disparities in Black health with the historical record. As Williams and Rucker stated: [W]e can only regard these [racial health disparity] findings as surprising if we take an ahistorical and decontextualized view of the data.. .Throughout the history of the United States, non-dominant racial groups have, either by law or custom, received inferior treatment in major societal institutions. Medical care is no exception.268 This historical approach has many practical implications. For example given the history of political under-representation and agency indifference, relying on government agencies in a Chevron269 mode is ill advised. As Alexander v. Sandova 270 and its expected progeny further restrict private rights of action under Title VI, the situation becomes dire. Reparational analysis suggests the need for a private right of action, placing the case in front of a life-tenured federal judge, rather than relying on majoritarian democratic politics as mediated through interest group politics. The historical approach also avoids the tendency to blame the victim, as some observers lay the blame for some health disparities upon cultural preferences. These cultural preferences - such as a distrust of the formal medical system - must be understood in the context of the history of medical abuse and neglect described in Section III above. Finally, the historical record also suggests that the remedy will not be cheap and easy. The injury spans many generations, and inflicted a remarkable crime against humanity. The remedy is likely to be equally powerful. Finally, the reparations heuristic may also facilitate the resolution of otherwise intractable issues, such as racial differences in the allocation of kidneys for transplant. The authors of an important article on this topic in the Vanderbilt Law Review appealed to something akin to the concept of reparations, although not by that name: [R]esponding to this disparate racial access can be justified as an attempt to eliminate the effects of past discrimination. Kidney failure is associated with a number of other factors that may be exacerbated in black communities because of past discrimination - including poverty, stress, alcohol use, and poor medical care. To the extent that past discrimination has left blacks disproportionately poor and that poverty induces higher rates of kidney failure, these lingering effects of discrimination also supports society's corrective concern. At a minimum, we believe it is incumbent on society not to ignore the equitable claims of blacks in favor of other possibly less pressing equitable claims... 271 Other examples include affirmative action in education, which could be supported on reparational grounds independent of Justice O'Connor's diversity rationale.272 Two potential problems with the heuristic must be mentioned. The first is very practical. Programs to eliminate health care disparities have some recent momentum in Congress, with support from both sides of the aisle.273 The Senate Majority Leader, Bill Frist (R-TN), is the sponsor and leading proponent of some of these programs to reduce racial disparities in health, but is probably not an ardent supporter of Black reparations. Why undermine Republican support for the program by linking it with Black reparations? The second question is also political. The heuristic supports a special warrant for groups that have been uniquely oppressed. If one accepts the general analysis that Blacks have been subjected to crimes against humanity, where does that leave other groups with racial disparities in health, but a different history? To the first question I would say that many reform programs move forward with multiple philosophical foundations, even contradictory foundations. The anti-slavery movement in the 1 9 th Century united religious abolitionists and hard-nosed businessmen, cynical politicians and idealists. It ultimately did not matter that they 274 supported anti-slavery for different reasons. As for the second question, the Black reparations movement does not oppose the elimination of all racial disparities in health. It merely stakes uniquely powerful claims for Black equality. Successfully equalizing Black health in America would require such major social changes that the spillover effect for all other groups would be significant. This rising tide would lift all boats.