Race-based government policies are being promoted more vigorously in the United States lately and they threaten to undo progress toward equality before the law. We’re seeing school boards engineer admissions to achieve racial balancing in classrooms, COVID-19 relief programs that earmark funds for preferred minority groups, and government contracts doled out on the basis of race. Now, the government’s use of race as a category to sort people has spilled into another area: public health.
The latest manifestation of this is Vermont’s decision to allocate the availability of vaccine booster shots based on race. Vermont is largely following public health recommendations and making the shot available to those at high risk either because of their age, a medical condition, or a high-exposure job. This is the course recommended by the Centers for Disease Control and Prevention (CDC), which has resisted calls from activists to include race in its guidelines. However, in Vermont, if you are “Black, indigenous, or a person of color (BIPOC)” or “live with someone who is BIPOC,” then you are eligible regardless of your age, your underlying health, or your employment.
This policy makes no sense. It is likely that most of the racial differences in COVID-19 outcomes are related to factors such as occupation, age, or the presence of a pre-existing condition that are covered by existing guidelines. And there is no evidence for the notion that just living with a racial minority increases the need for a booster.
This decision is likely to backfire. If there is high demand for the vaccine and low supply, then opening availability to people based on race will mean that those who most urgently need a booster — such as those with pre-existing conditions — will not be able to get it. On the other hand, if there is relatively low demand and high supply, this policy is nothing more than a pointless stunt that will further undermine public confidence in our health policy, which already has been undermined by illogical policies, arbitrary restrictions and blatant acts of hypocrisy.
Either way, no one wins.
It is also blatantly unconstitutional. The Constitution prohibits state governments from discriminating on the basis of immutable characteristics such as race. Any state policies that discriminate in this way are closely scrutinized and rarely survive review. Governments can take race into account only if doing so serves a compelling government interest of the highest order and if there are no possible alternatives that do not take race into account.
With an allocation of booster shots, there are many alternatives. Most obviously, if Vermont feels that BIPOC individuals are failing to get a booster shot at an acceptable rate, it can promote the benefits of the booster shot and even target the BIPOC community through increased outreach. It can also target other factors that may be contributing to worse outcomes, such as lower-income status. But it cannot enact a policy that bars people from accessing medical care based on their race.
Express discrimination based on race is becoming a part of more government policies lately. For example, the Biden administration was poised to extend COVID-related loan forgiveness to minority farmers based solely on their race. Pacific Legal Foundation fought back and won the nation’s first preliminary injunction on behalf of our client, Scott Wynn, and farmers across the country, preventing discrimination while litigation continues.
And the legal battleground in the fight against unlawful government discrimination appears likely to grow more crowded in the near future. Even though courts repeatedly have ruled that such laws are unconstitutional, race-based policies are nevertheless being adopted at an increasing rate.
Other states are also adopting race-based medical policies. For example, in Utah, race is included as a factor to determine whether a patient qualifies for potentially life-saving monoclonal antibody treatment.
These race-based policies are incompatible with the Constitution’s guarantee of equality under the law. Beyond the legal implications, these policies generate resentment and hostility toward the government — and even among well-meaning friends, family and neighbors. And when mixed with an ongoing pandemic, this type of racial discrimination ultimately can be deadly.
This op-ed was originally published by The Hill on October 26, 2021.