Facing a severe shortage of COVID-19 treatments, the health departments of New York State and City issued directives that providers use when allocating treatments. The directives instructed 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 prioritized individuals who are non-white or Hispanic or Latino in two ways. First, the directives prioritized 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 was 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. He and his wife live in Manhattan, where he has worked in finance for more than 40 years. Because he is over 60 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 was eligible to receive COVID-19 treatments under New York’s directives. Yet because he is white, he was eligible to receive these COVID-19 treatments only 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 sued 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.
On July 30, 2023, the U.S. Supreme Court declined to hear their case. But in a statement, Justice Samuel Alito and Justice Clarence Thomas emphasized that this kind of unequal treatment might merit Supreme Court review in the future.
“The circumstances underlying the dispute below have long since come and gone, and I therefore agree with the Court’s decision to deny review. But I write to note that this case involves an issue of ongoing importance: whether the Equal Protection Clause permits governments to use race or ethnicity as a proxy for health risk and therefore ‘prioritize the treatment of patients’ on that basis.”