U.S. Territories and Health Care Disparities During COVID-19
Visiting Lecturer in Law Neil Weare ’08 and Law School students Mary Charlotte Carroll ’20, and Rosa Hayes ’20 have published an article on the American Constitutional Society’s “Expert Forum” blog discussing the federal government’s discrimination against U.S. citizens who reside in U.S. territories in its provision of life-sustaining benefits.
The piece explains how denying federal Supplemental Security Income (SSI) and limiting Medicaid funding harms the territories, especially in the context of the COVID-19 crisis. It combines observations of the territories’ current health care situation with legal history to present a contemporary critique of the Insular Cases and the territorial incorporation doctrine that sanctions plenary congressional authority over the territories.
“The Supreme Court relied on explicitly racist justifications when it invented the territorial incorporation doctrine in the Insular Cases,” said Hayes. “Despite this history, federal courts continue to invoke and rely on the doctrine to limit the availability of fundamental constitutional rights to U.S. citizens who reside in territories.”
The issues are timely in light of a recent First Circuit decision that held SSI discrimination against a resident of Puerto Rico unconstitutional. Additionally, a pending Supreme Court case, Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, LLC, concerns the constitutionality of federal oversight over Puerto Rico’s debt crisis and has implications for Puerto Rico’s ability to govern itself democratically going forward.
“The U.S. government discriminates against its own citizens living in the territories on every level, from federal benefits to voting rights,” said Carroll. “The COVID-19 pandemic illustrates why treating residents of U.S. territories differently — and worse — than citizens on the mainland is unacceptable.”
Weare is the president and founder of Equally American, a nonprofit focused on achieving equal rights for Americans living in U.S. territories, and has been a visiting lecturer at the Law School for the spring 2020 semester. Carroll and Hayes are students in Weare’s class, Law of Territories. As part of their final project for the class, the two traveled to the U.S. Virgin Islands to interview health care providers and government officials about the state of Medicaid and SSI policy in the territory, and to conduct outreach to affected citizens. The Oscar M. Ruebhausen Fund at Yale Law School supported their research.
