Several Democrat-run states and cities are preferring non-white patients to receive potentially life-saving treatments for COVID-19, a race-based scheme that legal scholars believe is unconstitutional.
Health officials in Minnesota and New York City are among the newest jurisdictions to give people of color priority when deciding who will receive rare monoclonal antibodies that can prevent people infected with COVID-19 from developing serious illness.
In Minnesota, the state health department uses a points system that awards points to patients with certain risk factors such as chronic kidney disease and diabetes. The department’s assessment also gives two points to people with the âBIPOCâ status – blacks, indigenous people or colored people.
Therefore, white people who have the same risk factors are not given the same priority for antibody treatments as non-white people who get coronavirus. Legal analysts say the approach likely wouldn’t hold up in court.
“It is very open to constitutional challenges and difficult to defend from a state perspective,” said Walter Olson, a specialist in constitutional law and public order at the Cato Institute. “The equal protection clause is the strictest when it comes to explicit racial classifications by the government in granting rights.”
Eugene Volokh, a professor at the University of California Law School at Los Angeles, called the plans unconstitutional.
“Using race as a proxy for a supposedly higher risk – instead of focusing on the more direct relevant factors (‘race-neutral alternatives’ in doctrinal terms), such as: B. underlying diseases, vaccination status, lack of access to good alternative care or the like – would violate the equality protection clause in this situation, âwrote Mr Volokh in the magazine Reason. “If the [Health] The ministry is concerned about underdiagnosis of health conditions, it could certainly allocate resources to ensure that eligible patients are properly diagnosed; But not being white or Hispanic cannot just serve as a substitute for such an alleged underdiagnosis. “
In New York City, the State Department of Health issued a memo on Dec. 27 stating that non-Hispanic whites who are ill can only receive oral antiviral drugs if they are diagnosed with an illness or unspecified âother factors that may affect their risk for a serious illness increase âsuffer. Ill non-white and Hispanic people do not have the same qualifications to qualify for treatment.
The department orders that the race be used as a critical qualification factor and highlights the inequalities in access to the health system.
“Non-white race or Hispanic / Latin American ethnicity should be viewed as a risk factor as longstanding systemic health and social inequality have contributed to an increased risk of serious illness and death from COVID-19,” the memo said.
Sick white people can still be treated with monoclonal antibodies, but only if they can show that they have a condition that increases their risk of developing serious illness. Sick non-white people in New York are automatically entitled to treatment with no evidence of any medical condition.
In September, the Biden government newly restricted state access to antibody treatments in response to increased demand, mainly from seven southern states. Republican Tate Reeves, governor of Mississippi, said last week the state was facing a shortage of monoclonal antibodies to treat Delta variant and accused the Biden administration of refusing to help.
âWe need more tests from the federal government. We need more monoclonal antibody allocations from the federal government, âsaid Mr. Reeves. “And in the last 10 days we have begged them in vain to send them to us.”
New York City has also announced that it will consider a patient’s race when distributing potentially life-saving COVID treatments. The city’s Department of Health and Mental Hygiene announced on its website last month that the city “will use race and ethnicity when assessing individual risk.” It states that “long-term systemic health and social inequalities” may add to an increased risk of dying from COVID-19.
The guidelines apply to the distribution of monoclonal antibodies and oral antivirals such as paxlovid and molnupiravir, the New York Post reported.
“New Yorkers have borne the brunt of this pandemic due to structural racism and the legacy of divestment in many minority communities,” city health department spokesman Michael Lanza told The Post. “Physicians are advised to consider the disproportionate impact of these communities in addition to systemic health inequalities when prescribing treatments for people at highest risk for severe COVID-19 outcomes.”
The paper also quoted an unnamed doctor from Staten Island who complained that a pharmacist had asked two of his patients what race before filling out Paxlovid prescriptions for them. Both patients, who were white, received the treatments.
Andrew Giuliani, a Republican candidate for New York governor, said race-based politics in a Democrat-controlled city and state is “a politically motivated narrative.”
“They don’t treat everyone equally,” Giuliani said in an interview. âThis should be based on risk factors. It should be based on age, immunodeficiency, or obesity. The fact that they consider race to be the main factor in this is absolutely absurd. “
In Vermont, Republican Governor Phil Scott announced in April that anyone 16 and older who identifies as Black, Indigenous, or Colored (BIPOC) could get a COVID-19 vaccine.
State Health Commissioner Mark Levine said at the time that people of color were a priority for the vaccine due to their higher COVID-19 and lower vaccination rates.
The Centers for Disease Control and Prevention said in a November 30 memo that the COVID-19 pandemic has “pushed social and racial injustice and inequality to the fore in public health.”
“It has shown that health equity is still not a reality as COVID-19 has unevenly affected many ethnic and ethnic minorities and puts them at higher risk of developing and dying from COVID-19,” the agency said. âThe term ‘racial and ethnic minorities’ includes people of color with a wide variety of backgrounds and experiences. Many people within these groups have negative experiences and some social determinants of health have in the past prevented them from having fair chances of economic, physical, and emotional health. Social determinants of health are the conditions in the places where people live, study, work, play, and worship that affect a variety of health risks and outcomes. “
Recent CDC data shows that blacks and Hispanic Americans are vaccinated at lower rates than whites. The agency said 58% of whites received at least one COVID-19 vaccine dose, compared with 56% of Hispanic Americans and 51% of blacks. However, critics say that vaccination status, not race, should be the determining factor in treatment.
The controversy is not limited to blue states. In Texas in November, Republican gubernatorial candidate Don Huffines accused state authorities, under the administration of Republican Governor Greg Abbott, of discriminating against white and Asian Americans who try to obtain monoclonal antibodies.
“If I were the governor, we wouldn’t allow these racist policies in Texas,” Huffines said in a statement. “Policies that discriminate against Texans will stop as soon as I am governor.”
But Texas officials deny using a race-based policy when providing COVID treatments. Chris Van Deusen, a spokesman for the Texas Department of State Health Services, told USA TODAY in November that anyone of any race is entitled to monoclonal antibody treatment if their doctor prescribes it.
Mr. Abbott, who received Regeneron monoclonal antibody treatment in August after testing positive for COVID-19, announced on Dec. 31 that Texas is increasing state-sponsored testing sites and medical staff, as well as “additional monoclonal antibody assignments the federal government â.
“Detecting COVID-19 and preventing COVID-related hospitalizations are critical to our fight against this virus,” said Abbott in a statement. âAs the Biden government cuts supplies of monoclonal antibody treatments and test kits when they are needed most, the state of Texas is calling on the federal government to step up this fight and provide the resources needed to protect Texans. Test sites, additional medical staff, and continuous deliveries of therapeutics from the federal government will help us continue to save lives and contain the spread of COVID-19. “