When, in December, the U.S. Food and Drug Administration granted emergency approval for innovative antiviral medications to treat COVID-19, the news was hailed as the biggest advance in the pandemic since the vaccines. But while we’re moving forward in combating the virus and ending the pandemic, there’s one area where New York is moving rapidly backward: the promotion of racial discrimination.
In New York, such discrimination is now official policy in health care. State and city health bureaucrats have dictated that COVID treatments, limited in supply, should be prioritized to individuals not just based on objective and scientific risk factors like cancer, chronic disease and obesity, but also on the basis of one’s membership in an arbitrary racial group. That dangerously wrong-headed policy, lacking in scientific basis, has now landed New York in a constitutional lawsuit. (Disclosure: I represent the plaintiffs in this lawsuit.)
Among the more promising COVID-19 new treatments are the oral antivirals Paxlovid and molnupiravir, along with monoclonal antibodies, all of which could dramatically reduce hospitalizations and virus transmission. These medications are a welcome testament to the ingenuity and creativity of medical science when it comes to responding to new health threats.
Unfortunately, the production of these promising treatments has not yet ramped up to meet demand, and thus supplies are scarce. This requires some standard by which doctors decide which of their patients get the available medicine. Officials in New York have mandated an answer: They have published a state directive requiring treatment to be prioritized on a range of factors. The factors include some that seem obvious: age, vaccination status and health conditions that increase risk from COVID.
But one of those factors is race. Health care providers are instructed to grant a higher priority to treatment if the patient is non-white or Hispanic. For example, an Asian-American person seeking COVID-19 treatment must get that treatment before a white person of the exact same age, vaccination status, and number of risk factors.
There is no scientific basis for this distinction. Respiratory viruses are relentlessly color-blind, and there is nothing inherent about one’s race that would make them more susceptible of suffering severe symptoms after catching COVID. But New York officials, in keeping with the fashion of the times, have rejected the science in favor of racial preferences when distributing COVID treatments.
Given that racial classifications are a crude and arbitrary metric, the rules are mere politics rather than objective, scientific considerations that are usually the hallmark of medical decision-making. In practice, this threatens to deprive individuals of much-needed medical treatment on the basis of their race.
Such practical concerns are bad enough, but the constitutional questions raised by the New York policy are especially troubling. Specifically, basing the provision of health care services on race is a clear violation of the Equal Protection Clause in the Constitution’s 14th Amendment, which ensures that government entities will treat all citizens equally, regardless of racial background.
Especially in the last couple of years, blatantly discriminatory policies centered on race have gained currency with public officials determined to address social and economic disparities with long historical roots. That trend is alarming enough in the context of public contracting or public education, where racial preferences are rampant and need to end.
But to inject racial discrimination into health care, where such determinations can be a matter of life and death, raises the stakes significantly.
Two lifelong New Yorkers are now challenging this discriminatory policy. Jonathan Roberts, 61, and Charles Vavruska, 55 have filed suit in federal court to stop the unlawful use of racial criteria in the distribution of medical care. Jonathan Roberts, who is under 65 and fully vaccinated, is ineligible to receive these treatments because of his race. Charles Vavruska, who was hospitalized with COVID in March 2020, is eligible to receive these treatments, but may only do so after non-white individuals with identical risk factors receive their treatment first. The Pacific Legal Foundation represents these two plaintiffs, who aim to strike a blow at the unconstitutional use of racial preferences in health care and defend equality before the law. They seek not only a fair shake in accessing these potentially life-saving treatments, but also to establish a legal precedent that race should never be used as a basis for determining access to life-saving medical treatments.
We’re all familiar with the longstanding dictum, “First, do no harm,” under which medical professionals pledge to protect the well-being of their patients. That’s not only a good guideline for health care but also for managing America’s racial fault lines. Officials need to respect the Constitutional and moral principle of equality before the law and make health care decisions based on solid science and race-neutral criteria.
This op-ed was originally published by New York Daily News on February 17, 2022.