Facing a severe shortage of two oral antiviral drugs and monoclonal antibodies that effectively treat COVID-19, New York’s Health Department issued directives that providers use when allocating treatments in both the state and city of New York. The directives instruct healthcare providers to prioritize people based not just on objective, scientific criteria, such as cancer, heart conditions and other chronic diseases, but also based on an individual’s race.
New York’s directives prioritize individuals who are non-white or Hispanic or Latino in two ways. First, the directives prioritize members of these groups over identically situated white individuals even if they are at the same risk level, are the same age and have the same number of health risk factors. Second, because race is itself considered a risk factor, every non-white individual is automatically bumped into a higher tier, giving him or her priority access to scarce COVID-19 treatments.
PLF client Jonathan Roberts, a lifelong New Yorker, was born in New York City and grew up in a working-class household. Today, he and his wife live in Manhattan, where he has worked in finance for over 40 years. Because he is 61 years old, fully vaccinated, and white, Jonathan is categorically ineligible to receive these COVID-19 treatments.
For Jonathan, the fight for the American ideal of equality before the law is personal. His mother immigrated from Hungary, where her family faced severe anti-Semitism. He is therefore proud to stand up for his rights and the rights of all New Yorkers to be treated according to their individual needs and not on the basis of race.
PLF client Charles Vavruska is a lifelong New Yorker who was hospitalized with COVID-19 in March 2020. As a fully vaccinated 55-year-old with one risk factor, he is eligible to receive COVID-19 treatments under New York’s directives. Yet, because he is white, he is only eligible to receive these COVID-19 treatments after individuals who belong to a preferred racial group.
Both Jonathan and Charles hope that everyone who needs COVID-19 treatments can get them. But if the government must allocate scarce treatments, it must not do so on the basis of race. Racial discrimination is unjust and unconstitutional, and New York should stop using arbitrary racial distinctions to dictate who can — and who cannot — receive live-saving medical treatment.
Represented at no charge by Pacific Legal Foundation, Jonathan and Charles are suing in federal court to stop New York’s unlawful use of race in distributing COVID-19 treatments and to restore equality before the law for all New Yorkers.