New York Announces That Scarce Covid-19 Treatments Will Be Prioritized For Non-White Patients

New York may have triggered a new constitutional challenge with its policy to prioritize non-white people in the distribution of certain COVID-19 treatments. There are growing shortages due to a failure of the Biden Administration to anticipate the demand for monoclonal antibody treatment and antiviral pills as well as testing kits. New York’s Department of Health has responded to this shortage with a policy that will make race one of the prioritizing factors in distributing available resources. The policy, in my view, raises serious constitutional concerns over racial preferences in the supply of potentially life-saving treatments.

The memo acknowledged that “supplies of Sotrovimab are extremely limited.” As a result, most people are unlikely to be able to get access to such antiviral monoclonal treatments in the coming weeks.

I spoke to two leading doctors in the area by phone on Sunday who were livid about the failure of the Biden Administration to prioritize therapeutics earlier in the year when there was still time. Both said that they have struggled to find these treatments. Neither agreed with the use of race as a factor in making individual decisions over access to the scarce treatments.

The policy requires that distribution be based on findings that someone has “a medical condition or other factors that increase their risk for severe illness.” The key “other factors” include the “risk factor” of being non-white:

Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as  longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19.

Using race as a factor in such medical decisions immediately triggers constitutional concerns. When you delve deeper into the basis for the race preferences, the constitutional concerns only multiply.

The memo relies on two documents from the Centers for Disease Control (CDC). However, those documents identify medical conditions that are more prevalent in the minority populations. One document, entitled “People with Certain Medical Conditions,” describes those who are “more likely to get severely ill from COVID-19.” The obvious conditions are cancer, diabetes, obesity, heart conditions and other medical ailments. However, the CDC also discusses race as a factor:

Long-standing systemic health and social inequities have put various groups of people at increased risk of getting sick and dying from COVID-19, including many people from certain racial and ethnic minority groups and people with disabilities.

Studies have shown people from racial and ethnic minority groups are also dying from COVID-19 at younger ages. People in minority groups are often younger when they develop chronic medical conditions and may be more likely to have more than one condition.

The second document is entitled “Risk of Severe Illness or Death from COVID-19 — Racial and Ethnic Health Disparities.” The CDC notes that not only are certain conditions like obesity more prevalent in minority populations but “people from some racial and ethnic minority groups are less likely to be vaccinated against COVID-19 than non-Hispanic White people.”

The lower rate of vaccinations in the minority populations could present a problem for some commentators on the left who have demanded that the unvaccinated be denied care or placed at the end of the line for care at hospitals.  While such a policy would be unethical for physicians, people from Jimmy Kimmel to Don Lemon have suggested possibly denying scarce medical resources to those who have not agreed to be vaccinated. That, however, would mean putting a disproportionate number of minority citizens on the “do not heal” list.

It is not clear how these columnists and celebrities will now deal with a policy that gives preference to racial groups in part due to their higher unvaccinated numbers.

The problem for courts is that there is no reason to make race itself a factor as opposed to the medical conditions. Whether someone is obese is a fact that is entirely separate from their race. Either that condition exists or it does not exist. New York could simply prioritize on the basis of those conditions regardless of race. Ironically, given the higher rate of these conditions in minority communities, there would still be a higher priority given to many minority patients. Yet, by dropping the race criteria, you avoid clearly discriminatory cases where someone with a more serious medical risk profile could be prioritized lower due to being white.

A court is likely to have difficulty with the use of racial classifications in light of the availability of race neutral factors based on the actual medical conditions.

Any challenge, however, could face a problem in establishing a record of race-based denials. The state seems to have taken a chapter from college admissions policies where racial preferences are difficult to challenge due to the inclusion with other factors. It is hard to establish that race as opposed to other factors was given the determinative weight.

Erin Silk, a spokesperson for the New York Department of Health, captured that argument in her telling response to Fox News:

Systemic poverty, which has clearly proven to be a risk factor in populations in New York State and nationwide, is added to the algorithm of prioritization similar to all other risk factors. It is merely mentioned as a factor that increases risk.

A litigant, even proceeding under a declaratory judgment action, would need to show standing and an underlying injury. That could be difficult if the state uses race as one of a number of criteria.  However, the reference to the algorithm is key. That programming will have to assign a weight given to the racial preferences. That could be easily established in discovery and the algorithmic discrimination could be the subject of an injunction.

This controversy is reminiscent of the litigation over racial preferences used by the Biden Administration under its controversial $4 billion race-based federal relief program for farmers. The awarding of relief based on race immediately raised objections of racial discrimination. As we discussed earlier, the exclusion has been struck down by judges in various states as racially discriminatory. What was particularly concerning was the discovery of a document that showed that the Biden Administration recognized that such racial preferences were presumptively unconstitutional.

New York is now proceeding on the same questionable course of using race preferences when it could base medical decisions on specific medical risk criteria. It is not only legally problematic but practically unnecessary. It will only add more uncertainty and division over pandemic care at a time when the scarcity of testing kits and therapeutics are increasing tensions in the country.

247 thoughts on “New York Announces That Scarce Covid-19 Treatments Will Be Prioritized For Non-White Patients”

  1. Hey, just leave to us non-minority types the so-called “horse dewormer” and we can live with that—literally.

    1. It has been reported that the death rate for COVID patients prescribed remdesivir (26%) exceeds the fatality rate of COVID patients prescribed ivermectin, which is recorded by the Medicare database at 7.2%.  And it has documented serious side effects.

      As just one example, a published medical 2021 hospital study found nearly a 50% reduction in deaths for patients with severe pulmonary involvement, the typical late stage COVID death-bed patient condition.

      “Use of Ivermectin Is Associated With Lower Mortality in Hospitalized Patients With Coronavirus Disease 2019”

  2. I had three shots as well as my wife . The rest of my family has had two shots and out of nine people for Christmas seven came down with the virous . My wife is just now getting over it I had the virous in Nov.. The vaccines don’t work as they said herd immunity is our only hope and BTW I am 76 .

  3. Turley claims: “here are growing shortages due to a failure of the Biden Administration to anticipate the demand for monoclonal antibody treatment and antiviral pills as well as testing kits.” No, Turley, there are growing shortages due to the anti-vaxxers who are driving up COVID numbers, aided and abetted by the lies put out by your employer. To try to keep businesses and the military running, kids in school, testing as an alternative to vaccination is being required, so the demand for tests is exploding. Demand wouldn’t be exploding if vaccination rates were higher. Stop lying and playing politics with the facts, Turley.

    1. Competent leaders anticipate needs, they don’t whine and complain and demonize/insult half the country.

    2. Demand wouldn’t be exploding if Joe Biden was a competent leader –which he is not — with a coherent public health policy — which it is not….with a competent cabinet — which it is not.

      Joe Biden is a corrupt, incompetent, entitled career politician.

      Joe Biden is credibly accused of taking secret foreign cash via his sick son Hunter.

      Biden family corruption continues to be intentionally ignored by the U.S. media.

      Biden is not now — nor ever will be — a legitimate president.

      We The People are now on offense.

    3. “. . . there are growing shortages due to the anti-vaxxers . . .”

      So it’s a shortage of the unvaccinated?

      What next: They are snow storms of the unvaccinated?

    4. I don’t even know where to begin with your lies. The vaccinated are getting covid en masse. Your vaccine doesn’t work. It isn’t even a vaccine, it’s a gene therapy drug. But facts won’t get in the way of your demonizing of people who don’t want experimental poison jammed into their bodies.

      1. The two close friends of mine who recently contracted Covid were both vaccinated.

        The Risk/Benefit ratio has shifted. The risks of the vaccine are beginning to outweigh the benefits.

    5. “This is the first time in medical history that the ineffectiveness of a medicine is blamed on those that did not take it.” -Dr. Robert Malone

    6. No, Natacha, YOU are the one stating falsehoods here. There are FAR more people “vaccinated” now than in 2020, yet FAR more people are getting Covid. The majority of those coming down with Covid (the flu) are the ones who are “vaccinated” against it. The “vaccinated” are responsible for the creation and spread of variants. And it is the “vaccinated” who are dropping like flies from blood clots and heart issues.

      Wake up and do your homework, unless spreading falsehoods IS your homework.

    7. Wow…what a weak feeble mind you posess. You are neither intelligent or informed based on your mockingbird response….but hey, you be you…keep taking those jabs and cover your face with saran arap for all I care…we in AZ have no mandates, no masks, and we are doing just fine…had a great time talking to a bunch of red pilled nimrods like yourself over the New Year Holiday at the Fiesa Bowl…which didn’t require masks, covid passports, or anything else to enter…and AZ is doing WONDERFUL….enjoy the lockdown comrade.

    8. Natch: “Stop lying and playing politics with the facts, Turley.”

      ++++

      Not everyone who disagrees with you is lying. They just think you are full of crap.

    9. No. There are shortages because HHS banned for two weeks 2 of the 3 mAbs that were plentiful and effective against the delta variant.

    10. if the vaccine worked, people would get it! It doesn’t and it has killed over 10, 000 people according to vaers–cdc’s own data—kids between 15-25 have developed periocarditis or myocarditis…..people should have a choice and all the sheep should do some research!

    11. The ‘vaccines’ are causing the variants. You know by now it’s not really a vaccine yet you continue to call it that. That’s how effectively you’ve been brainwashed.

      In the spring of 2020 epidemiologists and virologists not in the thrall the Big Pharmaceutical companies warned that we couldn’t vaccinate our way out of a pandemic with a rushed vaccine, especially in a delivery mechanism never tested before. They were right and your Saints Fauci, Walensky and Collins were wrong. Yet you still worship them. Why? They haven’t been right on anything.

      Did the lockdowns work? Did the masks work? Now we’re told paper and cloth masks didn’t work, after two years of wearing them. Do you think more lockdowns and paper masks will work?

      In less than 6 months CDC Director Rochelle Walensky goes from saying:
       March 29, 2021: Vaccinated people don’t get sick
       August 19:  increased risk of severe disease for those vaccinated early

      How can any free thinking person look at those statements and think the ones in charge know what they’re doing? If this happened in the commercial world they’d be sued for fraud.

    12. Here’s something for you to consider that isn’t in natural shortage, just bureaucratic shortage: ivermectin

      It has been reported that the death rate for COVID patients prescribed remdesivir (26%) exceeds the fatality rate of COVID patients prescribed ivermectin, which is recorded by the Medicare database at 7.2%.  And it has documented serious side effects.

      As just one example, a published medical 2021 hospital study found nearly a 50% reduction in deaths for patients with severe pulmonary involvement, the typical late stage COVID death-bed patient condition.

      “Use of Ivermectin Is Associated With Lower Mortality in Hospitalized Patients With Coronavirus Disease 2019“

      Yet the government and corporate medicine continue pushing things that benefit Big Pharma over patients. Why is that?

      Nearly everything you believe is Pharma propaganda, being pushed for some reason by Fauci and his government colleagues. Why is that?

  4. This response containing quotes from the FDA ends the questions involving BioNTech and Comirnaty.

    I am not concerned medically that BioNTech and Comirnaty are legally different. What worries me is that it appears the government is hiding things they do not wish us to see. Everything involving Covid is suspect, from the funding in the lab in Wuhan, China, to the vaccines and therapeutics.

    FDA quotes from 12./07/2021 follow (bottom of the release)

    “The products are legally distinct with certain differences …”

    “Therefore, providers can use doses distributed under EUA to administer the vaccination series as if the doses were the licensed vaccine.”

    “Will the emergency use authorization (EUA) for Pfizer-BioNTech COVID-19 Vaccine remain in effect after the approval?

    Yes. The EUA remains in effect for the two dose primary series in individuals 12 years of age and older and as a third primary dose for individuals 12 years of age and older who have been determined to have certain kinds of immunocompromise. ”

    https://www.fda.gov/vaccines-blood-biologics/qa-comirnaty-covid-19-vaccine-mrna

    1. I’ve read this before. It says very little. Among other issues it skirts is the potential impact of the vaccines on the ovaries and reproductive processes. The casings that enable the mRNA
      to get into cells disperse and travel throughout the body. A relatively high proportion end up in the ovaries. This may be linked to reports of interrupted menstruation following vaccination. It may also be linked to the higher miscarriage rates in rodents reported in Japan as part of the vaccine approval process there. The question and answer on fertility is thus incomplete. There is much that is unknown about all the consequences of the vaccines, especially over time and for children.

      1. Daniel, you are right. Many things are unknown about the vaccine, yet the left pushes it even though there was never proof it prevented one from passing on the virus. The left weaponized Covid both in a laboratory and in the political realm.

          1. Young, there is no question in my mind that we do not know the long-term effects of the vaccine and that it is criminal to force anyone to take the vaccine. Based on historical knowledge accumulated over time, including studies performed, my original thought was that lockdowns wouldn’t work. The best we could do was have voluntary isolation of those at risk and use reasonable precautions.

            The leftists like Fauci have lied to us repeatedly. Even though Fauci probably did some excellent things in his younger years, they have been proven incompetent. The leftist Democrats want America to decline. They have no understanding of economics.

            The Democrat Party of today is not the same that it was just a couple of decades ago.

        1. S. Meyer,
          “there was never proof it prevented one from passing on the virus”

          As I understand it, it was only hoped that it would lessen a person’s risk for severe disease. If that’s the case, what’s the difference between the injection and HCQ, ivermectin, Zn, Mg, vitamin D, Se, and other supplements?

          HCQ+Zn MOA seemed to interfere with viral replication as a Zn ionophore. Ivermectin’s mode of action was possibly that and/or interfering the the virus’ ability to bind to the ACE2 receptor. If the virus cannot replicate effectively and you have a sturdy T-cell response, wouldn’t that inhibit “passing on the virus”?

          1. Prairie, a lot of elements are necessary to protect our health. It seems that we may have a lack of certain elements and vitamins that could help lessen the disease. We have been denied the use of medications used worldwide because authoritarians in power are taking care of themselves instead of us.

            Take Vitamin D. Does sunscreen and staying indoors reduce the natural production of vitamin D? Yes. That is where supplementation might come in useful.

            1. I know 6 people who took Ivermectin for covid and it worked. Two took it later in the disease and had a rougher time but recovered and 4 took it with first sign of symptoms and did very well.

              What surprised me is that most reported feeling better the day after beginning the treatment.

              Many doctors are reporting success using this treatment, or others like it, but the establishment seems to be ignoring feedback from the field and to be failing to adjust to useful real-world experience. They seem to think they know it all. The system is arthritic. It can’t accept that doctors actually fighting daily to save lives might know something. Fauci and the rest seem to prefer doing the same things that have failed for the last couple years and will likely fail for the next couple of years.

              1. Young,
                “What surprised me is that most reported feeling better the day after beginning the treatment.”

                That was my experience. However, despite taking additional supplements along with the ivermectin, after the prescribed ivermectin course was complete, I felt like I had a bit of a relapse. If one of its modes of action is to act as a more powerful zinc ionophore, perhaps I was experiencing an inadequate delivery of zinc into my cells??? Or maybe I am not supplementing with enough zinc (I am being very–too?–cautious with it to not upset my Zn/Cu balance).

                I actually had more of a loss of smell and taste after I stopped taking the ivermectin. I need to ask my doc about taking it at a lower dose as a “long Covid” treatment, along with the supplements I’m still taking. I can tell I am still depleted… 🙁

                The ivermectin did make me feel significantly better within a day of starting it, though!

                1. Prairie–

                  Thank you so much for that report. It is very useful. I was one of the six patients I described above. From what I have seen and have heard from others the post-covid fatigue is common. One friend–not one of the 6 mentioned above–said she had a Covid fog or weariness for almost 6 months after recovering. I am about a month out and am still prone to naps and have to overcome lassitude to sit at the computer. However I am gaining energy steadily. A lower dose of Ivermectin might work and it is not likely to harm. We have natural immunity now and I think that is superior to the vaccine by a wide margin. Play the link about vaccines I put above if you haven’t already done so. For sure before you get it. I am glad you are past Covid and on the upswing and I hope the best for you. I like your posts.

                  1. Young,
                    ” I am glad you are past Covid and on the upswing and I hope the best for you. I like your posts.”

                    I am glad to hear you are feeling better, too, and I hope you regain your full degree of energy soon! Thank you, too. That is very kind. I enjoy your posts, as well, and our conversations.

                    Peace be with you!

            2. S. Meyer,
              “Prairie, a lot of elements are necessary to protect our health.”

              I agree. I take 5000 of D daily, but I also take additional supplements and aim to eat a real food diet as much as I can. I should exercise more regularly, though…

              “It seems that we may have a lack of certain elements and vitamins that could help lessen the disease.”

              Yes.

              And, yes, there is a great deal of funny business with medication availability going on.

      2. Not only the ovaries, with an uptick in abnormal bleeding being seen in women of all ages –such that NIH recently funded five research grants to study the likely connection to the vaccines….but also the heart is affected — which accounts for the alarming increase in cardiac issues occuring post-vaccination — including heart attacks, strokes, myocarditis, etc.

        These ‘vaccines’ are not “safe” for everyone. Not by a longshot.

      3. Daniel,
        “A relatively high proportion end up in the ovaries. This may be linked to reports of interrupted menstruation following vaccination.”

        This also happens following a SARS-Cov-2 infection. While the spike proteins may play a role, I suspect the menstrual issues may stem from the depletion of Zn and Mg caused by the virus and the body’s reaction to it.

    2. ““The products are legally distinct with certain differences …”
      +++

      The legal distinction appears to be that nobody can be compelled to take the legally experimental version.

  5. Maybe black people can’t be racist but they do exhibit a level of RESENTMENT we haven’t seen since the defeated armies in the South formed the KKK. As they gain authority through the bureaucratic system they want to punish people whose only sin was being born Caucasian. Well, enough. The jab may be toxic, the antibodies may be unnecessary. Why not follow Japan? They’ve taken a therapeutic approach and suppressed hospitalizations, severe illness, and for less than we’re spending on Big Pharma’s solution. The fact that Pfizer owns the media should be exposed and protested. We want full disclosure from the drug companies, and a ban on censoring discussion about COVIT.

    Is there no one of stature willing to lead this protest? Elected officials silent? They’ve cancelled Trump, some others including doctors, so it’s not without risk, but who will lead American to the streets? Peacefully. Even Mostly Peaceful should Antifa show up. For What it is Worth.

    https://youtu.be/gp5JCrSXkJY

    1. Him: “Maybe black people can’t be racist…”

      +++

      Yes they can. They are easily the most racist ethnic group in America.

      Even in Africa they are racist against each other. Think Hutu and Tutsi.

      Blacks are randomly attacking whites and Asians in large numbers.

  6. Joel Pollak says it best:

    “The fact that Joe Biden is rationing monoclonal antibodies unnecessarily, keeping them away from conservative states, potentially threatening thousands of lives to enforce a dubious, and unconstitutional, mandate policy, is a moral outrage and ought to be grounds for impeachment.”

    Helloooo weak and feckless Republicans??? Open your dam mouths! NOW.

    1. Helloooo weak and feckless Republicans??? Open your dam mouths! NOW.

      +++

      They can’t impeach him without a House majority and they are unable to act with people like Kevin as Speaker even with a majority.

  7. Daniel (and any other lawyer or person with in-depth knowledge of the law), many questions have been raised about the approval status of BioNTech and whether it is legally the same as Comirnaty or even identical to it. We discussed this earlier. When things are not clear, I believe someone is trying to hide something.
    Here is a paragraph from January 3, 2022.

    “9 In the August 23, 2021 revision, FDA clarified that, subsequent to the FDA approval of CMIRNATY (COVID- 19 Vaccine, mRNA) for the prevention of COVID-19 for individuals 16 years of age and older, this EUA would remain in place for the Pfizer-BioNTech COVID-19 Vaccine for the previously-authorized indication and uses.

    You sound like an intelligent lawyer. What does that sentence mean to you? I know I am putting you on the spot because I don’t think you practice this type of law.

    The paragraph continues:

    It also authorized COMIRNATY (COVID-19 Vaccine, mRNA) under this EUA for certain uses that are not included in the approved biologics license application (BLA). In addition, the Fact Sheet for Healthcare Providers Administering Vaccine (Vaccination Providers) was revised to provide updates on expiration dating of the authorized Pfizer-BioNTech COVID-19 Vaccine and updated language regarding warnings and precautions related to myocarditis and pericarditis.

    …And follows is another troublesome spot:

    “The Fact Sheet for Recipients and Caregivers was updated as the Vaccine Information Fact Sheet for Recipients and Caregivers, which comprises the Fact Sheet for the authorized Pfizer- BioNTech COVID-19 Vaccine and information about the FDA-licensed vaccine, COMIRNATY (COVID-19 Vaccine, mRNA). ”

    The following are the footnotes for 9 and surrounding dates:

    “On August 23, 2021, FDA approved COMIRNATY (COVID-19 Vaccine, mRNA)8 and reissued the letter in its entirety for both Pfizer-BioNTech COVID‐19 Vaccine and certain uses of COMIRNATY (COVID-19 Vaccine, mRNA).9 Subsequently, FDA reissued the letter of authorization on September 22, 2021,10”

    Legalese sometimes escapes the understanding of the common man. I am not trying to prove anything more than understanding what we are dealing with.

    https://www.fda.gov/media/150386/download

  8. TWO YEARS

    If masks work, why don’t masks work?

    If lockdowns work, why don’t lockdowns work?

    If vaccinations work, why don’t vaccinations work?

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