Race-Based Allocation of COVID Therapies Is a Problem
Some governments have implemented policies that are almost certainly unconstitutional as well as morally questionable.
Governments around the country have been directing medical providers to allocate potentially lifesaving COVID therapies among patients on the basis of race, a policy that is almost certainly unconstitutional as well as morally questionable. Now the Associated Press is out with an article on the resulting controversy, which it misleadingly summarizes thus:
Amid the omicron surge, some conservatives have taken aim at policies that allow doctors to consider race when allocating COVID-19 treatments. Medical experts say claims that the protocols discriminate against white people are misleading.
Almost every phrase here is likely to lead readers astray. Governments have been directing, not merely allowing, doctors to assign point value to BIPOC (black, indigenous, person of color) status in triage formulas for rationing scarce COVID therapies. The controversy over this predates Omicron, and has little to do with any one variant. And it’s not just conservatives and libertarians who object, as AP reporter Todd Richmond should have known, since he mentions a critique written for the Wall Street Journal by John Judis and Ruy Teixeira, both men of the left. As for the medical experts, they are at best selectively chosen, while the legal experts are nowhere to be seen.
For those late to this controversy, here’s a few examples of how the preferences work. In dispensing the scarce kind of monoclonal antibody that is known to retain broad effectiveness against COVID, for example, the Minnesota Department of Health prescribed a point system in which BIPOC status was worth 2 points, the same as diabetes or age greater than 65. New York state adopted a similar policy of racial discrimination in making available the breakthrough antiviral Paxlovid: access to the drug would depend on having some risk factor for severe illness, but nonwhite status would count as such by itself, whereas white patients would have to demonstrate some extra factor putting them at risk. A Utah state framework for dispensing monoclonal antibodies “gives ‘non‐white race or Hispanic/Latinx identity two points, more than hypertension or chronic pulmonary disease,” reports Aaron Sibarium of the Washington Free Beacon, who has broken several stories on the issue. Further, the federal Food and Drug Administration has also issued influential guidance promoting racial preferences.
Controversial, right? Richmond, the AP reporter, finds exactly one critic to quote, and it’s … cable host Tucker Carlson. Carlson is tersely quoted as claiming the policy means “you win if you’re not white,” an easily refutable misstatement, since even under the points-added practice many nonwhite persons are denied therapy and many white persons receive it. As for the promised “medical experts” who brand the criticisms as misleading, they amount to one University of Minnesota senior fellow who drafted the controversial criteria for his state. (The criteria have since been withdrawn following public furor and legal scrutiny.) AP also calls on stage a political science professor to call the whole thing a right‐wing campaign ploy.
Neither the Constitution nor its Equal Protection Clause makes it into the story, which is a shame. As I wrote in 2020 when the question was one of government racial preferences in the distribution of vaccines as distinct from therapeutics, under the 14th Amendment
citizens of all races are entitled to the equal protection of the laws. The Supreme Court has long interpreted this to mean that the government may ordinarily not dole out valuable benefits, or impose harms, based on a citizen’s race.
Courts thus apply “strict scrutiny” to any race‐conscious law or policy, requiring proponents to show that it fulfills a “compelling purpose” for the government and is “narrowly tailored” to achieve that purpose, tests that this policy would be unlikely to pass.
There are a few major exceptions but they do not apply here. Compensatory preference is OK when there has been recent, systemic discrimination against a minority group by the same level of government that wants to adopt the preference. (Inequality by itself, even when traceable to society‐wide discrimination, isn’t good reason.)
States will point out in response that persons from minority groups fare worse from severe COVID illness. This would, in itself, hardly justify awarding points based on the medically meaningless portmanteau BIPOC category, since some subgroups within that category, including many Asian‐American groups, appear to fare better than whites, not worse, in COVID outcomes. It's true that some factors that influence COVID outcomes do correlate with race as a proxy. But UCLA law professor Eugene Volokh points out that courts would be unlikely to uphold use of race as a proxy for claimed greater risk when authorities could instead focus on relevant direct risk factors such as poor socioeconomic status, diabetes, or asthma.
States have made no showing that COVID is intrinsically a disease of race, probably because there is no such case to be made: Multiple sources cast doubt on whether outcomes are in fact worse once proxy factors are accounted for. For example, a large New England Journal of Medicine study of Louisiana patients found “Black race was not associated with higher in‐hospital mortality than white race, after adjustment for differences in sociodemographic and clinical characteristics on admission.”
In portraying the objections to racial preferences in therapy as a concoction of racial demagogues on the right, the Associated Press has done a disservice to the controversy and its readers.