The Law and Genetics of Racial Profiling in Medicine
94 Pages Posted: 26 Jul 2004
Modern medicine routinely employs race. This phenomenon, and the underlying rationale that salient biological differences exists between races, has been almost completely ignored by the law journals, although race in other contexts obsesses them. This is a serious omission since medicine's growing acceptance of using race in both research and treatment is at least as objectionable as other "racial profiling." Further, stressing genetic racial differences triggers associations with the eugenics movement and repeated "scientific" efforts of the last century to prove the intellectual inferiority of African-Americans.
From a genetic perspective, there is no such thing as race; instead race is socially constructed. But, when viewing race as an indicator of the geographic origin of one's ancestors, race can, in some limited circumstances, be characterized by differences in genetic frequencies that may have an impact on disease or its treatment, particularly when also linked to environmental or behavioral influences. Any such differences among population groups are nevertheless generally not very important from a medical perspective, although it might be sometimes appropriate to use race as a proxy for genetic (as well as environmental and behavioral) differences. The law nonetheless currently broadly proscribes the use of race, and the use of race in medicine is deeply problematic from a normative perspective because it may validate racism by confirming the salience of genetic differences.
Accordingly, use of race should be severely circumscribed. It should be permissible where race-focused studies and race-based outreach are concerned, but race-based screening, as we define that term, and racial exclusion in clinical trials should not be permitted. Racial differences in treatment (including diagnostic screening) should be permissible only in the quite rare circumstances where there is a bona fide treatment rationale. Under this test, the key requirement would be a scientific basis for believing not that race was helpful in diagnosis and treatment but rather that race was the best available method at the time.
Keywords: health law, race, discrimination, genetics
JEL Classification: I00, I10, I18, K32, K42
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