Universalism, Vulnerability, and Health Justice


This Essay charts a new course for the health justice model for health law scholarship, advocacy, and reform I have developed in a series of prior publications[1] and in conversation with other health law scholars.[2] The health justice model emphasizes collective problem-solving to secure distinctively public interests in access to health care and healthy living conditions. This emphasis is rooted in a communitarian[3] commitment to fostering mutual aid in response to shared interdependence[4] and universal vulnerability.[5] The health justice model also centers the experience, needs, and empowerment of people who are particularly vulnerable to injury, illness, and premature death due to subordination based on race, ethnicity, religious affiliation, gender, sexual orientation, physical or mental impairment, or other social or economic status.[6] Thus, it is also antisubordinationist.[7] I have noted before that these dual commitments to communitarianism, which emphasizes universal mutual aid based on shared vulnerability, and antisubordination, which prioritizes the needs of people who have been subordinated based on intersecting social and economic identities, are in tension with each other, at least on the surface.[8]

In this Essay, I tackle that tension head-on. The questions I raise and attempt to answer are more than theoretical. The tension between communitarianism and antisubordination mirrors longstanding public policy debates over the relative roles of universal versus targeted approaches to health reform, which I define broadly to include health care financing and delivery reforms, as well as public health proposals being considered within the United States and globally.

Here, I distill the theoretical debate over universalism versus antisubordination by commenting on two recent articles which appear to pull health justice in different directions. In The Civil Rights of Health, critical race feminist legal scholar Angela Harris and public health lawyer Aysha Pamukcu reject blanket universalism and call for health justice to target the needs of people who have been socially subordinated.[9] In Vulnerability and Social Justice, feminist legal scholar Martha Albertson Fineman does not address health justice directly but seeks more generally to restore the “social” to social justice by arguing that what Harris calls “[X] Justice” movements[10] should emphasize the universality of vulnerability as a defining characteristic of the human condition.[11]

Harris, Pamukcu, and Fineman ultimately hammer out a compromise between universalism and antisubordination by arguing for a “both/and” approach. Fineman argues that universal interventions must be pursued alongside targeted interventions to address discrimination.[12] Harris and Pamukcu argue that, to realize social justice, targeted interventions must be pursued alongside universal interventions.[13] Although the authors’ priorities are certainly different—Fineman emphasizes “what we share as human beings” rather than centering her approach “on specific individuals or groups or on human and civil rights”[14] while Harris and Pamukcu aim “to revive and expand civil rights law” as a targeted intervention for health justice[15] —their conclusions narrow the distance between them. Prominent advocates and organizations within the United States and globally have similarly called for “targeted universalism,” “progressive universalism,” or “incremental universalism.”[16]

I do not disagree with these prescriptions. It is true that both targeted and universal interventions are needed to secure health justice. It is also true that efforts to universalize social supports for health care and healthy living conditions without regard for the particular needs of people whose health is threatened by the state’s neglect and active harm will exacerbate health injustice. Both universal and targeted interventions must be constantly probed for the influence of social bias, neglect, and malice toward people who are socially subordinated and subjugated. But I seek to go further in reconciling what these strategies implicitly assume to be the tension between the competing priorities of universalism and antisubordination.

This Essay argues that universalism can and should be antisubordinationist at its core—if it is built on an assumption of shared vulnerability and if it is achieved through community empowerment. Universalism can serve the antisubordination goals at the heart of efforts to target the needs of those identified by health researchers as “particularly vulnerable,”[17] even as it demands a responsive state built on the communitarian assumption that all people are vulnerable and in need of social support to achieve and sustain good health. This approach, which I dub “contextualized universalism” provides the best path forward for health justice.

Part I provides an overview of the core commitments of the health justice framework. Part II focuses on the relationship between universalism and particular vulnerability in the contexts of health care reform and public health intervention. In Part III, I engage in a close reading of Fineman’s Vulnerability and Social Justice and Harris and Pamukcu’s Civil Rights of Health and their prescriptions for health justice, which informs my argument that contextualized universalism—universal interventions built on an assumption of shared vulnerability and designed, implemented, and evaluated through community empowerment—is the best path forward for health justice.

I.        Health Justice

Health justice is a framework for tackling some of the most challenging questions in health law and policy within the United States and globally. In the twenty-first century, health law scholarship is becoming bolder and more ambitious. [18] It addresses population and community health, including access to healthy living conditions, nutritious food, clean air and water, safe housing, and community efforts to mitigate the spread of infectious disease, in addition to health care financing and delivery.[19] It draws on international and comparative perspectives to understand the role of law in promoting access to health care[20] and to address problems that bridge the gap between domestic and global concerns, such as preparedness for and responses to public health emergencies, harms associated with consumer products in international trade, and environmental change).[21] It grapples with the overwhelming evidence that health outcomes are socially determined and vary dramatically based on geography, race, ethnicity, immigration status, income, formal educational attainment, gender identity, sexual orientation, and disability.[22] It asserts that law itself—including both “law on the books” and “law as a field of social practice”[23] — is a social determinant of health[24] and a critical structure through which subordination shapes health outcomes.[25]

Lessons learned in 2020 escalated a transformation in health law scholarship that was already underway. The stark inequities exposed by the Covid-19 pandemic and an increasing awareness of racism as a root cause of injury, illness, and death have contributed to a coming-of-age moment for a new generation of health reform proposals and health law scholarship that center equity and community empowerment.[26]

In response to the core insight of social epidemiology that health outcomes are socially determined,[27] the health justice model highlights the role of the social and distinctively public interests in health and health care.[28] It also seeks to fill a gap in the explanatory and normative power of more individualistic models for health law scholarship at a time when progressive health reformers are embracing a mutual aid approach to health care financing and public health intervention.[29]

Health justice is distinct from previously available models in two main ways. First, health justice is communitarian.[30] It emphasizes distinctively collective interests in health care and population health that are not adequately explained or addressed by earlier models.[31] Second, health justice is antisubordinationist.[32] It makes elimination of social disparities in health—which are, at root, caused by subordination—a primary goal of health law and policy.[33] Health justice emphasizes empowerment of communities, especially communities that have been socially subordinated, as a legitimating purpose of government intervention.[34]

The collectivist, communitarian orientation of health justice enhances its descriptive and normative power to address the bolder health reform proposals that have accompanied the turn of the twenty-first century. The health justice model’s explicit identification of “subordination as the root of unjust disparities”[35] and its commitment to centering the experience of marginalized people enhance its relevance to the struggles for social justice that shape twenty-first century politics. But the apparent duality of these commitments—to the collective public and to the particular needs of people who have been subordinated—begs an important question: should interventions to achieve health justice be universal or should they target the needs of particularly vulnerable populations?

II.        Universalism and Particular Vulnerability in Health Law and Policy

Universalism is “a central concept in social policy research” and is “typically used to describe social policies that include the whole population in a country, rather than just a targeted group.”[36] According to a rigorously developed definition recently put forward by political scientists Paula Blomqvist and Joakim Palme, universalism has “four analytical dimensions: inclusion, financing, provision, and benefits.”[37] The ideal universal program “should (1) formally include all citizens on the same conditions, (2) be financed through public means only, (3) be managed by one actor only so that benefits are uniform, and (4) offer social benefits that are generous and of high quality, thereby making them relevant to all groups in society, including the better-off.”[38]

Vulnerability is a term used in contradictory ways by scholars and advocates in different fields. In public health and other progressive projects,[39] vulnerability is often discussed as an attribute of particular groups. For example, in an influential 2008 article, Katherine L. Frohlich and Louise Potvin defined a “vulnerable population” as, “a subgroup or subpopulation who, because of shared social characteristics, is at higher risk of risks. The notion of vulnerable populations refers to groups who, because of their position in the social strata, are commonly exposed to contextual conditions that distinguish them from the rest of the population.”[40]

The tension between universalism and particular attention to the needs of vulnerable populations pervades health law and policy debates within the United States and globally. There are deep divides between the political left and right over the appropriate role of government intervention in response to social disparities in health.[41] But there are also disagreements among progressives over the focus of government intervention which have received less attention.[42] In this Essay, I set aside conservative objections to government intervention and concentrate exclusively on debates among progressives about the appropriate focus of government intervention in response to social disparities in health.

The relative priority of universalism versus attention to the needs of particularly vulnerable groups is hotly contested among progressive policymakers and legal scholars. The 2020 Covid-19 pandemic, coupled with the Movement for Black Lives, brought health disparities into stark focus.[43] Prior to 2020, “concerns about rising health care costs, declining community immunity for vaccine-preventable diseases, increasing antibiotic resistance, and mutual vulnerability in the face of public health emergencies” were already prompting a shift within health law, policy, and ethics toward reconciling collective and individual interests.[44] Universal eligibility for a basic package of socially supported health services—spanning access to health care, public health services, and social supports for healthy living conditions—appeared to be in tension with attendance to the special needs of groups identified as particularly vulnerable.

A.        Universal Versus Targeted Approaches to Health Care Coverage

The tension between universal and targeted approaches is evident on the world stage. At the turn of the century, the World Health Organization launched an annual World Health Report championing new universalism, with an emphasis on “high quality delivery of essential care, defined mostly by the criterion of cost-effectiveness, for everyone.”[45] The first report, published in 2000, contrasted new universalism with classical universalism’s unrealistic aim to guarantee “free access to all kinds of health care for all,”[46] on the one hand, and targeted approaches that provide “only the simplest and most basic care for the poor,”[47] on the other. It characterized targeted efforts “limited to the poor and to only the simplest services” as having largely failed to achieve health equity, with “quality of care . . . often so poor as to be characterized as ‘primitive’ rather than ‘primary.’”[48]

In the ensuing decades, global health experts have questioned whether universalism, particularly with respect to health care coverage, furthers or diminishes health equity. In the words of development expert Davidson Gwatkin and health economist Alex Ergo, “[The] quest for universal [health care] coverage is often advocated as a way of improving health equity. If fully achieved, it would clearly do so . . . obviat[ing] both the stigma thought to accompany use of services designed specifically for people who are poor, and the possibility that such services might be of low quality.”[49] They caution, however, that:

[U]niversal coverage is much more difficult to achieve than to advocate. And people who are poor could well gain little until the final stages of the transition from advocacy to achievement, if that coverage were to display a trickle-down pattern of spread marked by increases first in better-off groups and only later in poorer ones.[50]

Pointing to health reform efforts in Brazil as an example, Gwatkin and Ergo note that the trickle-down approach has become the norm.[51]  In 2015, the World Health Organization collaborated with the World Bank to monitor implementation of “universal health coverage,” with the term now clearly defined to encompass both health care and public health services.[52]  By 2019, advocates were calling for “progressive universalism” and attention to “the most marginalised and hard to reach populations” alongside “invest[ment] in everyone’s health” as among the “key asks” of the United Nations’ efforts to achieve universal coverage.[53]

The tension between universalism and attention to particular vulnerability is also prominent at the national level. Health reforms in countries with low-to-middle average household income have achieved significant gains in universal health coverage in recent years, but many higher-income countries with longstanding universal health care programs are rethinking their priorities in the midst of conservative pushes for austerity and privatization.[54]

While the movement to cut public health care funding and privatize health care administration continues apace in other parts of the world, in the United States, which has maintained a largely private health system from the start, there is growing interest in expanding public responsibility for health care.[55] Bold insurance reform proposals trigger unease among advocates for the vulnerable populations currently covered by Medicaid, including low-income children, pregnant women, and people with disabilities.[56] They caution that universalizing health care coverage could threaten the Medicaid program’s provision of wrap-around benefits for those with the greatest needs—including screening and early intervention for developmental and behavioral health problems up to age twenty-one—which private insurance or other public programs do not offer.[57]

B.        Universal Versus Targeted Approaches to Public Health Intervention

Universal public health interventions have also been criticized. Public health researchers have contrasted the universalist “population strategy,” which aims to “shift distribution of population risk exposure toward a lower mean through changes in environmental conditions,” with a more targeted focus on “vulnerable populations” that aims to lower “the risk exposure distribution of socially defined groups through changes” to the specific “social and environmental conditions” that cause their increased risk.[58]

While international health leaders focusing on health care access have emphasized universalism, advocates for a human rights-based approach to public health have strongly emphasized attention to the needs of the least healthy among us. In 2000, the same year that the World Health Organization launched its series of reports championing new universalism, the United Nations Committee on Economic, Social and Cultural Rights adopted General Comment 14 on the Right to the Highest Attainable Standard of Health.[59] The right to health, recognized in Article 12 of the International Convention on Economic, Social, and Cultural Rights,[60] reflects international norms relevant even in countries that are not parties to the convention. As General Comment 14 explains, the right to health encompasses “not only to timely and appropriate health care but also . . . to the underlying determinants of health,” and public health interventions “such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health.”[61] While it champions the universality of “every human being[‘s] entitle[ment] to the enjoyment of the highest attainable standard of health conducive to living a life in dignity,”[62] General Comment 14 also repeatedly emphasizes “particular attention to all vulnerable and marginalized groups.”[63] The public health tradition in which General Comment 14 is grounded insists upon particular attention the needs of the most vulnerable.[64] At the same time, public health ethicists embrace a deep commitment to distinctively public, collective interests and a communitarian conception of social justice.[65]

The response to the Covid-19 pandemic demonstrates that the commitment of public health ethicists to collective interests and social justice has not reliably translated into equitable public health interventions. In the United States and many other countries, far too much of the Covid-19 response has been built on the inaccurate assumption that individuals and households can or should take personal responsibility for adopting recommended behaviors—self-isolation, self-quarantine, and seeking out testing and vaccination—without adequate social supports.[66] Instructions that put the onus on individuals to change their behavior without providing the legal protections, financial supports, and social services that would enable to them to comply are ineffective and unjust.[67] They also send an implicit message that public health interventions are not designed for the benefit of the people at greatest risk, but rather for the benefit of people with resources and power.

III.        The Path Forward for Health Justice

At its root, health justice is an intentional effort to designate health law as a site for social justice reform. But the aspirations and modalities of social justice are disputed. By commenting on two recent articles that seem to pull health justice in different directions, I distill the tension between universalist and targeted approaches. Martha Albertson Fineman’s recent article, Vulnerability and Social Justice, seeks to restore the “social” to social justice by arguing that justice theories and movements should emphasize the universality of vulnerability as a defining characteristic of the human condition.[68] Angela Harris and Aysha Pamukcu’s recent article, The Civil Rights of Health, rejects blanket universalism and calls for health justice to target the needs of people who have been socially subordinated.[69]

A.        Fineman's Vulnerability and Social Justice

Fineman argues that state responsiveness to universal vulnerability “should be used to define the contours of” social justice,[70] which she argues “has lost much of its social focus.”[71] She emphasizes the understanding of social justice prevalent among New Deal era reformers in the U.S., “based on the status of citizenship or on a social identity such as worker or head of household,” which she argues “was a more inclusive claim,” than more recent notions of social justice “grounded in discrimination.”[72]

Fineman’s vision of social justice is an extension of her theory of universal vulnerability as a framework for balancing public and private responsibility for human flourishing. Fineman situates “[t]he legal subject typically envisioned in policy and political arguments [which] . . . valori[z]es the fully competent, capable individual adult, as well as liberty, self-sufficiency and autonomy” within the eighteenth-century context in which the “democratic principle of equality was formed [and] the political subject was a limited or refined one: white, male, property-owning or tax-paying, of a certain age and/or religion and free.”[73] As “political legal subjectivity formally grew to encompass previously excluded groups” over the nineteenth and twentieth centuries, she argues, “this modern legal subject has retained certain secondary characteristics that continue to cent[er] on the needs and political sensibilities of an eighteenth-century male citizen sheltered by institutions such as the patriarchal family and the privileges of a master-servant mentality.”[74] In its emphasis on the inevitable situation of subjects within family and community relationships, vulnerability theory shares much in common with relational feminism[75] and communitarian critiques of liberalism.[76]

From its inception, Fineman’s framework has sought to counter the stigmatizing political rhetoric surrounding dependency. In Fineman’s view, “means-tested social welfare programs [such as Medicaid,] . . . for those who ha[ve] failed to live up to their personal responsibility to protect themselves,”[77] operate as a “highly stigmati[z]ed backup”[78] and are not responsive to universal vulnerability. By “focus[ing] on specific individuals and operat[ing] to consider and compare social positions or injuries at a particular point in time,”[79] category-based eligibility criteria for social assistance programs run counter to Fineman’s ideal of a responsive state. Her call to restore the “social” to social justice movements emphasizes “the distribution or allocation of resources and the structures within which they are produced,” which have sequential and cumulative effects throughout a person’s life course.[80]

Fineman goes further, however, critiquing the very idea of “particularly vulnerable” populations. When “some people are viewed as more or less vulnerable, or as differently or uniquely vulnerable,” she argues, “the universality and constancy of vulnerability” is ignored.[81] Emphasis on “particularly vulnerable” groups, Fineman argues, “is merely another way of identifying bias, discrimination, and social disadvantage rather than focusing on structural arrangements that affect everyone.”[82] Her suspicion of individual claims to equality and liberty, which she cautions “are all too often construed as barriers” to state efforts to respond to vulnerability, is echoed in her critique of social justice movements “associated with specific individuals or groups and concerned with discrimination, exclusion, and economic inequality.”[83] She argues for a more universal understanding of social justice “grounded in the creation of broad social welfare projects” that benefit everyone, and not merely those that “target the poor or disadvantaged.”[84]

Attention to particularities in social advantage is not entirely inconsistent with Fineman’s universal vulnerability theory. At first glance, Fineman’s insistence that vulnerability is universal and constant, rather than being a characteristic of particular individuals or groups, and her disdain for the inadequacy of the antidiscrimination agenda may appear to erase differences associated with race, gender, sexuality, age, and disability. But Fineman’s work rests on a crucial distinction in her lexicon between vulnerability, which is inevitable and inherent in the biological human condition, and resilience, which is produced by social institutions and supports.

Fineman insists that all people are “equally vulnerable.”[85] But far from ignoring the centrality of power and privilege in shaping human experience, Fineman’s analysis “requires that we recogni[z]e the ways in which power and privilege are conferred through the operation of societal institutions, relationships and the creation of social identities, sometimes inequitably.”[86] Fineman recognizes that group-based identities can be the basis for “[i]mpermissible bias and discrimination” as well as “the basis for community building and a source of strength and resilience for individuals.”[87] In Fineman’s view, gender and racial differences, while very real, are less a matter of “particular characteristics” of individuals or “distinct but comparable categories . . . (male/female, white/[B]lack etc.)”[88] than “different[ial] situat[ions] within webs of economic, social, cultural, and institutional relationships that profoundly affect our destinies and fortunes, structuring individual options and creating or impeding opportunities.”[89] Age and physical and mental abilities do not define particular categories of people; rather, they are dynamic characteristics that shift as our bodies “mature and grow, as well as age and decline” across the life-course.[90]

B.      Harris and Pamukcu’s Civil Rights of Health

In their recent examination of legal responses to subordination as a determinant of health, Harris and Pamukcu advocate for more targeted interventions to eliminate health disparities, including “interventions that work better in [disadvantaged communities] than they do in white or more advantaged populations.”[91] Harris and Pamukcu are critical of universalism. They do not implicate Fineman’s theory of universal vulnerability specifically. Rather, their project addresses the universal health interventions they describe as the dominant approach of public health advocates. They argue that when “advocates [focus] on universal health interventions designed to benefit as many people as possible . . . health disparities may persist or even widen, and the systems that constrain individuals’ choices remain unchallenged.”[92] For health justice scholars, racism and other forms of subordination are chief among those systems.[93]

Harris and Pamukcu cite other scholars of social justice who “reject[] a blanket universal [approach] which is likely to be indifferent to the reality that different groups are situated differently relative to the institutions and resources of society.”[94] They critique the same New Deal programs Fineman expresses nostalgia for,[95] arguing that “[t]he Social Security Act, often described as the quintessential universal policy, was universal only insofar as the universal was a white, male, able-bodied worker.”[96] Indeed, the Social Security Act’s “definition of work excluded women” and “because of exclusions of agricultural and domestic workers, since rescinded,” which were “built in to appease Southern resistance to the Act, 65% of African Americans were denied its protections.”[97]

Harris and Pamukcu advocate for collaborative engagement between health justice scholars and their counterparts working in the areas of civil rights, critical race theory, disability rights, immigrant justice, and gender, sexuality, and the law.[98] These are precisely the sort of “recent” social justice movements Fineman characterizes as “particular and fragmented”[99] —in part because they are, in Fineman’s words, “limited to what have become the ‘traditional’ protected categories, such as race, gender, or disability.”[100]

Although they call for targeted interventions, Harris and Pamukcu approach the term “particularly vulnerable” with caution, even placing scare quotes around it: “In the public health literature, the social groups disproportionately burdened by health disparities are often referred to as ‘vulnerable populations.’ These groups, however, are vulnerable to poor health and premature death not for biological reasons, but for political and social ones.”[101] Their critique of how vulnerability is discussed in public health literature is crucial for health justice scholarship and advocacy. Both universal and targeted interventions must be constantly probed for the influence of social bias, neglect, and malice toward people who are socially subordinated and subjugated.[102] Harris and Pamukcu offer an important reminder that racism, not race, is the social determinant of health that makes some groups particularly vulnerable.

C.      The Both/And Compromise

Like other commentators before them, Fineman, Harris, and Pamukcu ultimately advocate for a compromise between universalism and antisubordination by arguing that both are needed. Fineman argues that responsiveness to universal vulnerability must supplement, but not entirely supplant, antidiscrimination laws.[103] Similarly, Harris and Pamukcu do not advocate for targeted approaches to replace universalism. Rather, they point to the work of civil rights and racial justice scholars john. a. powell, Stephen Mendenian, and Jason Reece who call for “targeted universalism”[104] as well as the National Collaborating Center for Determinants of Health’s promotion of “proportionate universalism”[105] as offering a compromise.

Powell, Mendenian and Reece maintain a focus on collectivism and distinctively social interests, even as they reject blanket universalism. Ultimately, they argue for targeted universalism, which they define as “an approach that supports the needs of the particular while reminding us that we are all part of the same social fabric.”[106] The National Collaborating Center for Determinants of Health has promoted proportionate universalism, which they associate with European health reforms, as reflecting recognition that to “level up the gradient [in health outcomes], programs and policies must include a range of responses for different levels of disadvantage experienced within the population.”[107]

Turning to global health, Gwatkin and Ergo have similarly argued for “progressive universalism,” in which the needs of particularly vulnerable people are addressed first.[108] Their approach reflects a “determination to ensure that people who are poor gain at least as much as those who are better off at every step of the way toward universal coverage, rather than having to wait and catch up as that goal is eventually approached.”[109]

D.        A Deeper Reconciliation: Contextualized Universalism

In this Essay, I argue for an approach I call “contextualized universalism.” Under contextualized universalism, universal interventions must be built on an assumption of shared vulnerability, rather than assuming self-sufficiency and individual responsibility, and must be designed, implemented, and evaluated in ways that empower affected communities (a bottom-up approach, rather than top-down).

Much like the descriptive social-ecological model of health on which the normative health justice framework is based, vulnerability analysis begins by situating individuals within their social context. The health justice model, including the version of it championed by Harris and Pamukcu, joins vulnerability theory in critiquing the classically liberal default of limited government in which “an emphasis on personal liberty and autonomy . . . combined with an assertion of equality or impartiality [is] used to argue against directing law and policy to address existing inequality” and “arguments for a collective (or social) ideal of justice [are] beaten back by reference to the ideal of individual, not institutional, responsibility.”[110] Just as the health justice model seeks to move beyond the individualistic patient rights model by focusing on the distinctively public interests at stake in health law and policy, Fineman also points to “the eroding effects of an individually focused” approach to rights “that emphasizes formal equality and celebrates individual liberty and choice.”[111] Both theoretical frameworks seek to describe and guide mutual aid in response to mutual interests.[112] Both insist that “social problems need social or collective, not just individual, solutions.”[113]

Both models—health justice and universal vulnerability analysis—enshrine the state as a legitimate and necessary mechanism for collective responses to basic human needs. In Fineman’s words, “the very formation of communities, associations, and even political entities and nation-states are responses to human vulnerability.”[114] As public health scholar Dan Beauchamp has argued, “health and safety are a signal commitment of the common life—a central practice by which the body-politic defines itself and affirms its values.”[115] More recently, public health law scholar Nan Hunter has argued that U.S. health insurance reforms organized around a principle of mutual aid “have the potential to lead to new discourses and understandings about the interrelationship between individualism and collectivity, and about the public and private dimensions of the health system.”[116] Indeed, the public health legal and ethical tradition[117] in which the health justice model is grounded may provide exactly the kind of “robust language of state or collective responsibility, one that recognizes that social justice is realized through the legal creation and maintenance of just social institutions and relationships,”[118] that Fineman is looking for.

Context is key to whether universal interventions further or hinder antisubordination. Critical race and feminist legal scholars have rightly noted that universalism has privileged and universalized the norm of the white, male, able-bodied worker[119] who takes personal responsibility for his health and that of his dependents and seeks social assistance only in exceptional circumstances. Harris and Pamukcu’s criticism is levelled at the conventional public health approach they view as “hindered by a universal and individualist focus.”[120] The universalism they reject is grounded in an individualistic notion of personal responsibility and a related emphasis on interventions that emphasize “lifestyle choices.”[121]

Fineman’s vulnerability analysis, grounded in feminist legal theory, replaces the white, able-bodied male norm with a norm of universal vulnerability.[122] The “conception of what is universal”[123] at the heart of Fineman’s call for universal interventions to achieve social justice is grounded in the experience of women as caretakers embedded in relationships responsive to shared dependence. Her vulnerability theory emerged out of her analysis of how “members of society who openly manifest the reality of dependency—either as dependents or caretakers in need of economic subsidy—are rendered deviants” by a society bent on “maintaining the myth that autonomy and independence can be attained.”[124] As a model for health law scholarship and advocacy, health justice centers the experience of marginalized people. Fineman’s theory of vulnerability analysis similarly begins by setting aside the white, male, property-holding legal subject.[125] Centering experiences that have previously been marginalized does not necessarily dictate that interventions should always be targeted, rather than universal. It means listening to people who have been marginalized when they voice their needs.[126]

Arguments and actions grounded in identity politics can be atomizing and individualizing as Fineman has implied,[127] but they need not be. In Harris’s words, “[a]t its best, . . . the politics of identity seeks not only inclusion, but also transformation on both the ideological and the material level.”[128] Across social justice movements and scholarship, there are many indications that the transformation that antisubordinationist identity politics aims for is communitarian, not individualistic. Again relying on Harris:

In a culture so dedicated to the individual, the project of pluralistic democracy must make plain the inextricability of the self from institutions, from history, and from power . . . . The politics of identity [and] feminist theory . . . seek to make [‘a distinctive culture in which constituencies have a significant hand in modeling and moving the identities that constitute them’] a reality.[129]

The dual commitments of health justice to universalism and antisubordination mirror the “twin moral impulses that animate public health: to advance human well-being by improving health, and to do so particularly by focusing on the needs of the most disadvantaged.”[130] Attention to the needs of people who experience worse health outcomes and higher rates of premature death due to the exertion of social power by others is a form of collective redress and reparation, including for the role the health system has played in the process of subordination and subjugation. What is needed is balance between universal and targeted interventions, with attention to the influence of social bias on both. As Harris and Pamukcu note, the “many public health approaches remain hindered by . . . insufficient critical self-consciousness”[131] and “have not fully reckoned with the . . . dynamics of subordination that have shaped medical and public health research, interventions and policy.”[132] But antisubordination does not have to be individualistic in its orientation. Communitarianism does not have to ignore differences in how individuals are treated by their communities.

A community-oriented frame for antisubordination reforms moves beyond the intuitive pull to focus on individual wrongdoers and individual victims. It reveals collective obligations to repair collectively caused and collectively experienced harms. A contextualist approach to universalism highlights the importance of grounding universal interventions in an assumption of shared vulnerability and bringing them to fruition through community empowerment.


A state responsive to universal human vulnerability must pay particular attention to the needs of people who are at increased risk of disease, injury, and premature death due to social subordination and subjugation. As civil rights scholar Lani Guinier and environmental justice scholar Gerald Torres have observed, signs of distress among racialized and marginalized populations are “the first sign of a danger that threatens us all.”[133] They argue that “others ignore problems that converge around racial minorities at their own peril, for these problems are symptoms warning us that we are all at risk.”[134] In their foundational text, The Miner’s Canary, Guinier and Torres “explore how racialized identities may be put to service to achieve social change through democratic renewal.”[135] They describe their project as addressing a “distinctly American challenge,” but Guinier and Torres’s caution that signs of distress among “those who are left out” reveal “social justice deficiencies in the larger community”[136] has reverberating relevance for a host of challenges across the globe. Debates over how we should respond to global climate change, the push for fiscal austerity, declining vaccination rates, and novel and reemerging infectious disease threats raise essential questions about what exactly we owe each other as members of global, national, and subnational communities. In each of these crises, suffering is earliest and greatest among people who are vulnerable as a result of social subordination and subjugation.

A state—and international community—responsive to universal human vulnerability and to the needs of people who have been socially subordinated will be crucial as health law and policy leaders tackle twenty-first century challenges. Fineman acknowledges that her notion of the responsive state is idealistic. “[T]here is little evidence,” she notes, “that a collectivist approach to social justice would be viable in today’s political world, and this is the case on both the conservative and the liberal sides of the political spectrum.”[137] Her aim, like mine and like Harris’s and Pamukcu’s, is to emphasize how out of balance collective and individual interests have become “in our increasingly individualistic society,” where we are “much more likely to have a particular and fragmented—rather than a collective—sense of justice.”[138] But recent health reform proposals emphasizing mutual aid and interdependence are a move in the right direction. Enriched by vulnerability theory, health justice’s commitment to ensuring that the state is responsive to collective needs and human vulnerability, including its particularities, makes it an apt framework for a bolder new era of health reform in the U.S. and globally.

[1]. See, Lindsay F. Wiley, Health Law as Social Justice, in 24 Cornell J.L & Pub. Pol'y 47 (2014) [hereinafter Wiley, Social Justice]; Lindsay F. Wiley, From Patient Rights to Health Justice, 37 Cardozo L. Rev. 833 (2016) [hereinafter Wiley, Health Justice]; Lindsay F. Wiley, Applying the Health Justice Framework to Diabetes as a Community-Managed Social Phenomenon, 16 Hous. J. Health L. & Pol'y 191 (2016); Lindsay F. Wiley, Tobacco Denormalization, Anti-Healthism, and Health Justice, 18 Marquette Benefits & Soc. Welfare L. Rev. 203 (2017).

[2]. See, e.g., Emily Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275 (2015); Elizabeth Tobin-Tyler & Joel B. Teitelbaum, Essentials Of Health Justice: A Primer (2019); Medha D. Makhlouf, Health Justice for Immigrants, 4 U. Pa. J.L. & Pub. Affs. 235 (2019); Angela Harris & Aysha Pamukcu, The Civil Rights of Health: A New Approach to Challenging Structural Inequality, 67 Ucla L. Rev. 758 (2020); Matthew B. Lawrence, Against the "Safety Net,” 72 Fla. L. Rev. 49 (2020); Emily A. Benfer et al., Health Justice Strategies to Combat the Pandemic: Eliminating Discrimination, Poverty, and Health Disparities During and After COVID-19, 19 Yale J. Healtj Pol’y, L. & Ethic 122 (2020) [hereinafter Benfer et al., Combat the Pandemic]; Yael Cannon, Injustice is an Underlying Condition, 6 U. Pa. J. L. & Pub. Affs. 201 (2020); Ruqaiijah Yearby & Seema Mohapatra, Systemic Racism, the Government's Pandemic Response, and Racial Inequities in COVID-19, 70 Emory L. J. 1419 (2021); Robyn M. Powell, Applying the Health Justice Framework to Address Health and Health Care Inequities Experienced by People with Disabilities During and After COVID-19, 96 Wash. L. Rev. 93 (2021); Emily Benfer et al., Setting the Health Justice Agenda: Addressing Health Inequity & Injustice in the Post-Pandemic Clinic, 28 Clinicla L. Rev. 45 (2021); Lindsay F. Wiley et al., Health Reform Reconstruction, 55 U.C. Davis L. Rev. 657 (2021) [hereinafter Wiley et al., Reconstruction]; Thalia González et al., A Health Justice Response to School Discipline and Policing, 71 Am. U. L. Rev. 1927 (2022); Dayna Bowen Matthew, Just Health: Treating Structural Racism To Heal America (2022); Lindsay F. Wiley et al., What is Health Justice?, 50 J.L Med. & Ethics 636 (2023) (introduction to an edited symposium featuring diverse perspectives on health justice).

[3]. See Wiley, Social Justice, supra note 1, at 52 (describing health justice as a communitarian framework for health law scholarship and advocacy); Amitai Etzioni, Public Health Law: A Communitarian Perspective, 21 Health Aff. 102, 102-103 (2002) (describing responsive communitarianism in terms of a commitment to “making room for the public interest” and taking the position “that individual rights and social responsibilities, liberty and the common good, have equal standing and neither should be assumed a priori to trump the other”).

[4]. Wiley, Health Justice, supra note 1, at 835, 889 (associating health justice with mutual aid in the form of collective financing of health care and public health services in recognition of mutual interdependence).

[5]. In this Essay, I follow Harris and Pamukcu in using “universalism” to refer to collective efforts to provide universal supports for human needs, rather than using it to refer to universal norms in contrast to norms that differ from community to community. See Harris & Pamukcu, supra note 2, at 793 (describing universalism in terms of “a focus on solutions that apply broadly across all social groups); see also Tobin-Tyler & Teitelbaum, supra note 2, at 15 (defining health justice in terms of “laws, policies, systems, and behaviors that are evenhanded with regard to and display genuine respect for everyone’s health and well-being”).

[6]. In this Essay, I adopt Harris and Pamukcu’s approach to using the term “subordination as synonymous with oppression as Robin DiAngelo defines the term ‘[A] set of policies, practices, traditions, norms, definitions, cultural stories, and explanations that function to systematically hold down one social group to the benefit of another social group.’” Harris & Pamukcu, supra note 2, at n. 4.

[7]. See Harris & Pamukcu, supra note 2, at 806 (“health justice not only places subordination at the center of the problem of health disparities, it also calls for subordinated communities to speak and advocate for themselves.”); Wiley, Social Justice, supra note 1, at 85 (“[Achieving health justice] will take organizing from the ground up; social change that transforms the current systems of neglect, bias, and privilege into systems—policies, practices, institutions—that truly support health[y] communities for all.”) (quoting a now-inactive website developed by The Praxis Project).

[8]. See generally Wiley, Social Justice, supra note 1, at 56 (“The dual goals of redistribution (which emphasizes material outcomes) and recognition (which emphasizes process, participation, respect, and identity) threaten to pull social movements in opposing directions. But they can and should function as complementary strains of social justice argument, allowing for advocacy strategies that combine a ‘cultural politics of identity’ with a ‘social politics of equality,’ promoting just distribution of economic and social goods rooted in participatory parity.”) (quoting Nancy Fraser, From Redistribution to Recognition?: Dilemmas of Justice in a “Postsocialist” Age, 212 New Left Rev. 68, 69 (1995)); see also Etzioni, supra note 3, at 104 (“The tension between the communitarian balance and fairness is an issue that communitarians have not well addressed.”).

[9]. Harris & Pamukcu, supra note 2.

[10]. See Angela P. Harris, Anti-Colonial Pedagogies: “[X] Justice” Movements in the United States, 30 Can. J. Women & L. 567, 568 (2018) (describing [X] justice Movements as “social movements in which advocates adopt a prefix to the word ‘justice,’ as in ‘environmental justice,’ ‘reproductive justice,’ ‘food justice,’ ‘land justice,’ and ‘water justice’").

[11]. Martha Albertson Fineman, Vulnerability and Social Justice, 53 Valparaiso U. L. Rev. 341 (2019).

[12]. Fineman, supra note 11, at n.4.

[13]. Harris and Pamukcu, supra note 2, at 829.

[14]. Fineman, supra note 11, at 342.

[15]. Harris and Pamukcu, supra note 2, at 765.

[16]. See Part III.C, infra.

[17]. Harris & Pamukcu, supra note 2, at 773 (critically assessing the focus of health researchers on “particularly vulnerable” populations); Katherine L. Frohlich & Louise Potvin, The Inequality Paradox: The Population Approach and Vulnerable Populations, 98 Am. J. Pub. Health 216, 218 (2008) (“A vulnerable population is a subgroup or subpopulation who, because of shared social characteristics, is at higher risk of risks. The notion of vulnerable populations refers to groups who, because of their position in the social strata, are commonly exposed to contextual conditions that distinguish them from the rest of the population. As a consequence, a vulnerable population’s distribution of risk exposure has a higher mean than that of the rest of the population.”).

[18]. See, e.g., Wiley, Health Justice, supra note 1, at 854-72 (describing an increasing focus on distinctively public interests and increasing integration of health care and public health with citations to relevant health law scholarship); Wiley et al., Reconstruction, supra note 2 at 666-80 (describing the shift toward more ambitious goals for health reform with citations to relevant health law scholarship).

[19]. See generally Wiley, Health Justice, supra note 1, at 881-84 (describing increasing integration of public health aims and conceptual frameworks into health care reforms with citations to relevant health law scholarship).

[20]. See, e.g., Timothy Stoltzfus Jost, Comparative and International Health Law, 14 Health Matrix 141 (2004) (describing the growth and expansion of health care law and adding a comparative and international perspective); Gwendolyn Roberts Majette, Global Health Law Norms and the PPACA Framework to Eliminate Health Disparities, 55 Howard L.J. 887 (2011-2012) (applying a global and comparative health law perspective to assess efforts to eliminate health disparities in the United States).

[21]. See, e.g., Lawrence O. Gostin, Global Health Law (2014) (defining the field of global health law and describing its role in public health emergency preparedness and response, consumer product safety, climate change adaptation, and other issues).

[22]. See, e.g., Scott Burris, From Health Care Law to the Social Determinants of Health: A Public Health Law Research Perspective, 159 Penn. L. Rev. 1649, 1652-1655 (2011) (surveying social-epidemiological evidence of health disparities and describing responding to these findings as “perhaps the true ‘grand challenge’ of our time in public health”).

[23]. See generally id. at 1655.

[24]. See Scott Burris et al., Integrating Law and Social Epidemiology, 30 J.L. Med. & Ethics 510, 510 (2002).

[25]. See Benfer et al., Combat the Pandemic, supra note 2, at 135 fig. 2 (describing law and subordination as social determinants of health); Ruqaiijah Yearby, Structural Racism and Health Disparities: Reconfiguring the Social Determinants of Health Framework to Include the Root Cause, 48 J.L. Med. & Ethics, 518 (2020) (incorporating structural racism into the social determinants framework as a root cause of disparities operationalized through law).

[26]See Wiley et al., Reconstruction, supra note 2, at 659-66 (arguing that the Covid-19 pandemic and racial reckoning of 2020 should prompted a generational shift in health reform proposals and health law scholarship).

[27]. See. e.g., Burris, supra note 22, at 1652-1655.

[28]See Wiley, Health Justice, supra note 1, at 872-88 (describing the health justice model in terms of commitments to serving collective interests in health care and population health).

[29]See id. at 839-54 (describing the individualistic bias of earlier models in contrast to the focus of health justice on collective interests).

[30]. See Wiley, Social Justice, supra note 1, at 52.

[31]. See Wiley, Health Justice, supra note 1, at 872-88.

[32]. See Harris & Pamukcu, supra note 2, at 806.

[33]. See Wiley, Social Justice, supra note 1, at 53 (describing health justice as a framework “for using law as a tool for reducing health disparities”); Benfer, supra note 2, at 277 (describing health justice as a framework “for the achievement of health equity and social justice”).

[34]. See Wiley, Social Justice, supra note 1, at 56.

[35]. Harris & Pamukcu, supra note 2, at 809.

[36]. Paula Blomqvist & Joakim Palme, Universalism in Welfare Policy: The Swedish Case Beyond 1990, 8 Soc.. Inclusion 114, 114 (2020).

[37]. Id.

[38]. Id.

[39]. Here, I use the term “progressive” in the broader sense, referring to social and political projects aimed at improving societal conditions, rather than using it in the narrower sense of incremental improvements over time. It is in the broader sense that I describe public health as a “progressive project.” See generally Lawrence O. Gostin & Lindsay F. Wiley, Public Health Law: Power, Duty, Restraint (3d. ed. 2016) 18 (“the central mission of the public health system is to engage in systematic action to assure the conditions for improved health for all members of the population and to redress persistent patterns of systematic disadvantage”).

[40]. Katherine L. Frohlich & Louise Potvin, The Inequality Paradox: The Population Approach and Vulnerable Populations, 98 Am. J. Pub. Health 216, 218 (2008).

[41]. For perspectives on health disparities aligned with the priorities of the political right, see Richard A. Epstein, Disparities and Discrimination in Health Care Coverage: A Critique of the Institute of Medicine Study, 48 Perspectives Biology & Med. S26-41 (2005); Petr Skrabanek, The Death of Human Medicine and the Rise of Coercive Healthism (1994).

[42]. See Part II.A, infra.

[43]. See generally Wiley et al., Reconstruction, supra note 2.

[44]. Wiley, Health Justice, supra note 1, at 838.

[45]. Philip Musgrove et al., The World Health Report 2000, World Health Organization [WHO] 15 (2000), https://cdn.who.int/media/docs/default-source/health-financing/whr-2000.pdf?sfvrsn=95d8b803_1&download=true [https://perma.cc/G9D7-4BJK].

[46]. Id. at 13.

[47]. Id. at 15.

[48]. Id.

[49]. Davidson R. Gwatkin & Alex Ergo, Universal Health Coverage: Friend or Foe of Health Equity?, 377 Lancet 2160, 2160 (2011).

[50]Id.; see also Ceri Averill & Anna Marriott, Oxfam, Universal Health Coverage: Why Health Insurance Schemes Are Leaving the Poor Behind (2013), https://oxfamilibrary.openrepository.com/bitstream/handle/10546/302973/bp176-universal-health-coverage-091013-en%20.pdf [https://perma.cc/B5B3-H66W].

[51]See Gwatkin & Ergo, supra note 49, at 2160.

[52]. See World Health Organization & World Bank, Tracking Universal Coverage: First Global Monitoring Report 25 (2015).

[53]. Moving Together to Build a Healthier World, Key Asks From the UHC Movement, U.N. High-Level Meeting on Universal Health Coverage (2019), https://www.uhc2030.org/fileadmin/uploads/uhc2030/Documents/UN_HLM_2019/UHC_Key_Asks_final.pdf [https://perma.cc/BNN5-UV3U].

[54]. See World Health Organization & World Bank, Tracking Universal Health Coverage: 2021 Global Monitoring Report 5, fig.1.2 (2021) (showing greater gains in the universal health coverage service coverage index in low- and middle-income countries than in high-income countries); John Peters, Neoliberal Convergence in North America and Western Europe: Fiscal Austerity, Privatization, and Public Sector Reform, 19 Rev. Int’l Pol. Ec. 208 (2012) (describing trends toward austerity and privatization in North American and Western Europe).

[55]. See, e.g., Sara Rosenbaum et al., Public Health Insurance Design for Children: The Evolution From Medicaid to SCHIP, 1 J. Health & Biomedical L. 1, 2 (2004).

[56]. Id.

[57]. Id.

[58]. Frohlich & Potvin, supra note 40, at 219.

[59]. See U.N. CESCR, 22nd Sess., General Comment No. 14: The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).

[60]. G.A. Res. 2200A(XXI), International Covenant on Economic, Social and Cultural Rights (Dec. 16, 1966).

[61]. Id. ¶ 11.

[62]. Id. ¶ 1.

[63]. Id. ¶ 43(f).

[64]. See Gostin & Wiley, supra note 39, at 18.

[65]. See Wiley, Health Justice, supra note 2, at 865-66 (contrasting public health ethics with bioethics).

[66]. See generally Lindsay F. Wiley & Samuel R. Bagenstos, The Personal Responsibility Pandemic: Centering Solidarity in Public Health and Employment Law, 52 Ariz. St. L.J. 1235 (2020) (arguing that individualistic government responses to the Covid-19 pandemic are ineffective and unjust and that public health and employment law should be reoriented to support interventions rooted in social solidarity and the social-ecological model of health); Aziza Ahmed & Jason Jackson, Race, Risk, and Personal Responsibility in the Response to Covid-19, 121 Coum. L. Rev. F. 47 (2021) (describing the theoretical frameworks that undergirded individualistic responses to the Covid-19 pandemic and arguing for responses that focus on the social determinants of health).

[67]. See generally Wiley & Bagenstos, supra note 66.

[68]. Fineman, supra note 11.

[69]. Harris & Pamukcu, supra note 2.

[70]. Fineman, supra note 11, at 342.

[71]. Id. at 346.

[72]. Id. at 345 n.21.

[73]. Martha Albertson Fineman, Vulnerability and Inevitable Inequality, 4 Scandanavian U. Press 133, 148 (2017).

[74]. Id.

[75]. See generally Robin West, Relational Feminism and Law, in Research Handbook on Feminist Jurisprudence, 65–77 (Robin West & Cynthia Grant Bowman eds., 2019) (describing relational feminism, which emphasizes the importance of relationships among individuals, families, and communities to understanding and critiquing subordination).

[76]. See Michael Walzer, The Communitarian Critique of Liberalism, 18 Pol. Theory 6, 9 (1990) (describing multiple versions of the communitarian critique, including the argument that liberal theory “radically misrepresents real life” by envisioning individuals “cut loose from all social ties”).

[77]. Fineman, supra note 73, at 140.

[78]. Id. at 141.

[79]. Id. at 135.

[80]. Id. at 147.

[81]. Id. at 142

[82]. Id.

[83]. Fineman, supra note 11, at 346.

[84]. Id.

[85]. Fineman, supra note 73, at 147.

[86]. Id. at 142.

[87]Id. at 143 n.31.

[88]. Id. at 143.

[89]. Id. at 145.

[90]. Id. at 144.

[91]. Harris & Pamukcu, supra note 2, at 794 (quoting Shiriki Kumanyika, Getting to Equity in Obesity Prevention: A New Framework, Nat'l Acad. Med. 4 (2017)).

[92]. Id. at 793.

[93]. See Yearby, supra note 25.

[94]. Harris & Pamukcu, supra note 2, at 794 n.138 (quoting John A. Powell et al., The Importance of Targeted Universalism, 18 Poverty & Race Rsch. Action Council 16, 16 (2009)).

[95]. See Part III.A, supra.

[96]. John A. Powell et. al., The Importance of Targeted Universalism, 18 Poverty & Race Rsch. Action Council 16, 16 (2009).


[98]. Harris and Pamukcu, supra note 2, at 765.

[99]. See Fineman, supra note 11, at 346.

[100]. Id. at 346 n.21.

[101]. Harris & Pamukcu, supra note 2, at 773.

[102]. Wiley, Social Justice, supra note 1, at 100.

[103]. Fineman, supra note 11, at n.4.

[104]. Powell et. al., supra note 96, at 16.

[105]. Nat'l Collaborating Ctr. For Determinants of Health, Let's Talk: Universal and Targeted Approaches to Health Equity (2013).

[106]. Powell et. al., supra note 96, at 16.

[107]. Nat'l Collaborating Ctr. For Determinants of Health, supra note 61.

[108]. See Gwatkin & Ergo, supra note 49, at 2161.

[109]. Id.

[110]. Fineman, supra note 73, at 140–41.

[111]. Fineman, supra note 11, at 346. For a lengthier treatment of a similar critique, see Samuel Moyn, Not Enough: Human Rights In An Unequal World (2018).

[112]. Wiley, Health Justice, supra note 1, at 835; Fineman, supra note 11, at 342.

[113]. Fineman, supra note 73, at 141; see also Wiley, Social Justice, supra note 1, at 95; Wiley, Health Justice, supra note 1, at 874.

[114]. Fineman, supra note 73, at 142; see also Fineman, supra note 11, at 344.

[115]. Dan E. Beauchamp, Community: The Neglected Tradition of Public Health, 15 Hastings Ctr. Rprt. 28, 34 (1985).

[116]. Nan D. Hunter, Health Insurance Reform and Intimations of Citizenship, 159 U Pa. L. Rev. 1955, 1959 (2011).

[117]See Beauchamp, supra note 115, at 34.

[118]. Fineman, supra note 11, at 342.

[119]. See id., at 355 n.79.

[120]. See Harris & Pamukcu, supra note 2, at 798.

[121]. Id. at 795 (discussing the work of public health scholars Mary T. Basset and Jasmine D. Graves, who argue that “attributing differences in health to lifestyle choices perpetuates a ‘racist idea’ because it ‘assigns responsibility to individuals without reference to the context of their lives…dismissing racial patterning of power and opportunity [and ignoring] the toll of daily and lifelong experiences of discrimination.’") (quoting Mary T. Bassett & Jasmine D. Graves, Uprooting Institutionalized Racism as Public Health Practice, 108 AJPH Pub. Health Dialogue 457, 457 (2018)).

[122]. Fineman, supra note 73, at 148.

[123]. Powell et. al., supra note 96, at 16.

[124]. Martha A. Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 Va. L. Rev. 2181, 2182 (1995).

[125]. See Fineman, supra note 73, at 148.

[126]. See Angela Harris, Bad Subjects: The Practice of Theory and the Constitution of Identity in Legal Culture, 9 Cardozo Women's L.J. 515, 519–20 (2003).

[127]. See Fineman, supra note 73, at n. 21 (characterizing the social justice ideal of the New Deal era as “not defined by or limited to what have become the ‘traditional’ protected categories, such as race, gender, or disability” and arguing that it was therefore “a more inclusive claim” than one “grounded in discrimination”); Martha Albertson Fineman, Vulnerability, Resilience, and LGBT Youth, 23 Temple Pol. & Civ Rts. L. Rev. 307, 313 (describing “identity frames” as “operat[ing] to divide individuals”); id. at 309 (describing sexual identities as a form of “differentiation or fragmenting”); id. at 310-11(contrasting arguments based on universal vulnerability with “a typical individualized rights-based argument organized by the concept of impermissible discrimination based on identity categories such as sex, race, or ethnicity”).

[128]. Id. at 518.

[129]. Id. at 525 (quoting William E. Connolly, Why I Am Not A Secularist 137, 154 (1999)).

[130]Gostin & Wiley, supra note 39, at 18.

[131]. Harris & Pamukcu, supra note 2, 798.

[132]. Id. at 795.

[133]. Lani Guinier & Gerald Torres, The Miner's Canary: Enlisting Race, Resisting Power, Transforming Democracy 11 (2003).

[134]. Id.

[135]. Id.

[136]. Id.

[137]. Fineman, supra note 11, at 345–46.

[138]. Id. at 346.