Medical treatment

New York Daily News: Eliminate racial preferences from medical treatment

When, in December, the United States Food and Drug Administration granted emergency approval for innovative antiviral drugs to treat COVID-19, the news was hailed as the pandemic’s biggest breakthrough since vaccines. But as we make progress in the fight against the virus and the end of the pandemic, there is one area in which New York is rapidly slipping back: the promotion of racial discrimination.

In New York, such discrimination is now official health care policy. State and city health bureaucrats have dictated that COVID treatments, which are in short supply, should be prioritized for individuals not only based on objective, scientific risk factors like cancer, chronic disease and obesity, but also on the basis of membership in an arbitrary racial group. This dangerously flawed policy, lacking any scientific basis, has now brought New York to a constitutional trial. (Disclosure: I am representing plaintiffs in this lawsuit.)

Among the most promising new COVID-19 treatments are the oral antivirals Paxlovid and molnupiravir, as well as monoclonal antibodies, all of which could significantly reduce hospitalizations and transmission of the virus. These drugs are a welcome testament to the ingenuity and creativity of medical science when it comes to responding to new health threats.

Unfortunately, production of these promising treatments has not yet increased to meet demand, so supplies are scarce. This requires a certain standard by which doctors decide which of their patients get the available drug. New York officials mandated a response: They issued a state directive requiring treatment to be prioritized on a range of factors. Factors include some that seem obvious: age, vaccination status, and health conditions that increase COVID risk.

But one of those factors is race. Health care providers are instructed to prioritize treatment higher if the patient is not white or Hispanic. For example, an Asian American person seeking COVID-19 treatment should get that treatment before a white person of the same age, vaccination status, and number of risk factors.

There is no scientific basis for this distinction. Respiratory viruses are relentlessly colorblind, and there’s nothing inherent in race that would make them more likely to suffer severe symptoms after catching COVID. But New York officials, in keeping with the fashion of the time, dismissed science in favor of racial preferences when distributing COVID treatments.

Since racial classifications are a crude and arbitrary measure, the rules are mere political considerations rather than the objective scientific considerations that are usually the hallmark of medical decision-making. In practice, this threatens to deprive individuals of much-needed medical treatment because of their race.

Such practical concerns are serious enough, but the constitutional issues raised by the New York policy are particularly troubling. Specifically, basing the delivery of health care services on race is a flagrant violation of the Equal Protection Clause of the Constitution’s 14th Amendment, which guarantees that government entities will treat all citizens equally, regardless of their origin. racial.

Especially in the past two years, blatantly discriminatory policies centered on race have gained ground with officials determined to address social and economic disparities with long historical roots. This trend is alarming enough in the context of public procurement or public education, where racial preferences are endemic and must end.

But injecting racial discrimination into health care, where such determinations can be a matter of life and death, raises the stakes significantly.

Two longtime New Yorkers are now challenging the discriminatory policy. Jonathan Roberts, 61, and Charles Vavruska, 55, have filed a federal lawsuit to end the illegal use of racial criteria in the distribution of medical care. Jonathan Roberts, who is under 65 and fully vaccinated, is not eligible to receive these treatments due to his race. Charles Vavruska, who was hospitalized with COVID in March 2020, is eligible to receive these treatments, but can only do so after non-white people with identical risk factors receive their treatment first. The Pacific Legal Foundation represents these two plaintiffs, who seek to strike a blow against the unconstitutional use of racial preferences in health care and to defend equality under the law. They seek not only to gain equitable access to these potentially life-saving treatments, but also to set a legal precedent that race should never be used as a basis for determining access to life-saving medical treatments.

We are all familiar with the long-held saying “First, do no harm,” that healthcare professionals are committed to protecting the well-being of their patients. This is not only a good guideline for health care, but also for dealing with America’s racial rifts. Public servants must uphold the constitutional and moral principle of equality before the law and make health care decisions based on sound science and race-neutral criteria.

This editorial was originally published by New York Daily News on February 17, 2022.