New York City; February 9, 2022: Two lifelong New Yorkers filed a lawsuit last night challenging recent directives instructing New York medical providers to consider race in distributing lifesaving COVID-19 treatments.

Two recently authorized oral antiviral treatments are up to 88% effective in reducing the risk of hospitalization and death from COVID-19. One available monoclonal antibody treatment is effective against the Omicron variant of COVID-19. Faced with severe supply constraints for these treatments, the state and city health departments directed health care providers to prioritize patients after considering a host of risk factors, including age, vaccination status, and health conditions like cancer, diabetes, and a compromised immune system.

But rather than limiting the criteria for administering medical treatment to scientific data concerning risk, the state and city added a patient’s race as an additional consideration, granting priority status for individuals of “non-white race or Hispanic/Latino ethnicity.” Yet although race can be associated with other factors that may increase a person’s chances of suffering severe symptoms from COVID-19, the Mayo Clinic found that there is nothing inherent about race that puts anyone at a higher risk of suffering severe symptoms.

Plaintiff Jonathan Roberts is a 61-year-old New York City native who has worked in finance for over 40 years. Because Jon is under 65 years old and fully vaccinated, he is categorically ineligible to receive the treatments because he is white and non-Hispanic.

“We eagerly await the day on which the supplies for these medical treatments can match demand,” said PLF attorney Wen Fa. “But until that time, treatments should be allocated on the basis of need and scientific criteria, not on the basis of arbitrary racial classifications.”

The case is Roberts et al. v. Bassett et al., filed in the United States District Court for the Eastern District of New York.


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Pacific Legal Foundation is a national nonprofit law firm that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 34 states plus Washington, D.C., PLF represents clients in state and federal courts, with 18 wins of 20 cases litigated at the U.S. Supreme Court.

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