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.