The Canary-Blind Constitution: Must Government Ignore Racial Inequality?

I INTRODUCTION For centuries, coal miners took canaries into the mine to alert them that atmospheric conditions were dangerously toxic. (1) If the canary showed signs of distress, it was time to get out. (2) The miner's canary has been used as a metaphor to describe the signal provided by observed disparities between racial groups along socioeconomic dimensions. (3) Black people experiencing disproportionate disadvantage suggests the presence of systemic underlying "toxic" conditions that correlate with race. The metaphor can be applied to infant mortality rates--a statistic long recognized as indicating a population's overall health and well-being. (4) A black infant in America today is up to three times more likely than a white infant to die in her first year of life. (5) Additionally, despite landmark gains in civil rights in the 1960s, the racial gap in infant mortality has consistently increased since then. (6) The disparity widens further as comparisons proceed up the socioeconomic ladder; that is, the ratio of black-to-white infant mortality rates is larger among the middle class than among members of lower socioeconomic classes. (7) In fact, infant mortality rates for college-educated black women are higher than those for white women without a high school diploma. (8) Moreover, for white women, infant mortality rates are higher for recent immigrants than for women born to several-generation families, whereas for black and other women of color, the opposite is true. (9) The causes of racial disparities in infant mortality and related perinatal conditions, such as premature birth and low birth weight, are more complex and uncertain." (10) Immediate causes of infant mortality include congenital abnormalities, pregnancy complications, respiratory distress syndrome, and sudden infant death syndrome (SIDS). (11) As to why such maladies correlate with race, studies have found an association between perinatal problems and a range of socioeconomic factors disproportionately experienced by black Americans, such as living in segregated neighborhoods marked by poverty, unemployment, violent crime, and single-parent households. (12) Such conditions tend to intensify physical and emotional stress in pregnant women and contribute to maladaptive coping strategies, including smoking, substance abuse, and poor nutrition. (13) Low socioeconomic status is also associated with lack of access to prenatal care and infant parenting education. (14) Studies also find consistently that, even controlling for insurance status and income, minorities receive lower-quality care than whites. (15) One explanation is that racial bias or cultural ignorance on the part of health-care providers affects the quality of prenatal and other medical care provided to black mothers. (16) Still other studies point to beliefs common among some black communities that can deter accessing medical care, such as mistrust toward health-care providers. (17) More recent studies suggest that stress from discrimination, and the perception thereof, can also have a harmful effect on perinatal outcomes. (18) Time and generations compound these factors. That is, the longer a female lives in economically and psychologically stressful conditions, the more likely she will bear children with perinatal health problems; (19) in fact, the conditions under which a woman lives can adversely impact the health of not one but two generations. (20) For example, if a woman, due to life circumstances, bears an undernourished child with low birth weight, that child is more likely as an adult to bear an underweight child. (21) On a positive note, research into racial disparities in infant mortality has helped to identify conditions that cause infant mortality generally, which has helped to bring infant mortality rates down for all women. At the same time, however, the racial gap--the ratio of black to white rates of infant mortality-- has increased, prompting some experts to describe racial disparities in infant mortality as a persistent "puzzle" and "mystery. …